Jharkhand High Court

Kanhai Bind vs Union Of India on 2 March, 2023

                                              1                   M.A. No. 28 of 2014


               IN THE HIGH COURT OF JHARKHAND, RANCHI
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M.A. No. 28 of 2014

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Kanhai Bind, s/o late Beni Bind, resident of Village Bauraee, Post Office and Police Station -Chainpur, District-Kaimur (Bhabhua) .... Applicant/Appellant

-- Versus --

Union of India, through General Manager, East Central Railway, Post Office and Police Station-Hajipur and District-Patna .... Respondent/Respondent

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Appellant :- Mrs. Chaitali C. Sinha, Advocate

For the Respondents :- Mrs. Neeta Krishna, Advocate

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12/02.03.2023 Heard Mrs. Chaitali Chatterjee Sinha, the learned counsel

appearing for the appellant and Mrs. Neeta Krishna, the learned counsel

appearing on behalf of the respondent/Railways.

The present appeal has been directed against the order

dated 20.08.2013 passed by Member/Technical, Railway Claims Tribunal,

Ranchi Bench, in Case No.OA(II-u)/RNC/2010/0135 (Old No.OU-

70083/07) whereby the learned Tribunal has been pleased to dismiss the

compensation case filed by the appellant.

The learned counsel for the appellant submits that on

09.08.2007 after purchasing and having valid second class train ticket for

Jasidih to Gaya, Mau Bind @ Mau Devi boarded Train No.805 Up Rampur

Halt- Gaya Passenger at Kiul station after reaching Kiul from Jasidih by

another train for going to Gaya. As the train was approaching Gaya

passengers started reaching near the gate of the compartment and the

deceased was also standing at the gate to get down at the Gaya station.

While the said train was running between Manpur and Gaya (Km 464/23

and 464/21) the deceased accidentally fell down from the running train

on account of heavy rush and intense jostling of the passengers which

resulted in her death. On this background, the appellant who happened

to be husband of the deceased, approached the learned Railway Tribunal

for compensation in terms of Railways Act, 1908. She submits that by the

impugned judgment dated 20.08.2013, the learned Tribunal has been

pleased to dismiss the claim on the ground that there was no witness to

the incident and has further held that the deceased was not a bonafide

passenger. She submits that the judgment is not in accordance with law

and sections of Indian Railways Act, particularly, section 123(C) and

section 124(A) have not been interpreted in its right perspective. She

submits that the co-passenger has filed the affidavit to the effect that

she(deceased) was travelling along with them in the train. She further

submits that final form has been submitted which is on the record as

Exhibit-A/7 in which it has been disclosed that the death occurred due to

cut of the body into two pieces by the train. She further submits that

since in light of the judgment rendered in the case of ―Union of India v.

Rina Devi‖ reported in (2019) 3 SCC 572, particularly, paragraph no.25,

the case of the appellant is fully covered and in that view of the matter,

the judgment passed by the learned Railway Claims Tribunal is not

correct. For ready reference, paragraph no.25 of ―Union of India v. Rina

Devi‖(supra) is quoted hereinbelow:

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 contributory 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 [United India Insurance Co. Ltd. v. Sunil Kumar, (2019) 12 SCC 398 : 2017 SCC OnLine SC 1443 : (2017) 13 Scale 652] 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.

She further submits that the Divisional Railway Manager

(DRM)'s report, in light of Railway Passengers (Manner of Investigation of

Untowards Incident) Rules, 2003, in view of Rule 13 of the said Rules,

which is a statutory provision, has not been produced.

Per contra, Mrs. Neeta Krishna, the learned counsel

appearing on behalf of the respondent/Railways submits that the learned

Tribunal has rightly held that there was no eye witness to the incident

and in that view of the matter, there is no illegality in the judgment of the

learned Tribunal. She further submits that no ticket was found and in

view of that, the deceased was not a bonafide passenger and the learned

Tribunal has rightly held that she(deceased) was not a bonafide

passenger. She further submits that burden lies upon the claimant to

prove the case as has been held by the Hon'ble Supreme Court in the

case ―Union of India v. Rina Devi‖(supra), particularly as per paragraph

no.26 and 29 of the said judgment, which are quoted hereinbelow:

"26. Conflict of decisions has been pointed out on the subject. As noticed from the statutory provision, compensation is payable for death or injury of a "passenger". In Raj Kumari [Raj Kumari v. Union of India, 1992 SCC OnLine MP 96 : 1993 ACJ 846] referring to the scheme of the Railways Act, 1890, it was observed that since travelling without ticket was punishable, the burden was on the Railway Administration to prove that passenger was not a bona fide passenger. The Railway Administration has special knowledge whether ticket was issued or not.

The 1989 Act also has similar provisions being Sections 55 and 137. This view has led to an inference that any person dead or injured found on the railway premises has to be presumed to be a bona fide passenger so as to maintain a claim for compensation. However, the Delhi High Court in Gurcharan Singh [Gurcharan Singh v. Union of India, 2014 SCC OnLine Del 101 : 2015 ACJ 171] held that initial onus to prove death or injury to a bona fide passenger is always on the claimant. However, such onus can shift on the Railways if an affidavit of relevant facts is filed by the claimant. A negative onus cannot be placed on the Railways. Onus to prove that the deceased or injured was a bona fide passenger can be discharged even in absence of

a ticket if relevant facts are shown that ticket was purchased but it was lost. The Delhi High Court observed as follows : (Gurcharan Singh case [Gurcharan Singh v. Union of India, 2014 SCC OnLine Del 101 : 2015 ACJ 171] , SCC OnLine Del para 4) "4. ... (ii) In my opinion, the contention of the learned counsel for the appellant claimants is totally misconceived. The initial onus in my opinion always lies with the appellant claimants to show that there is a death due to untoward incident of a bona fide passenger. Of course, by filing of the affidavit and depending on the facts of a particular case that initial onus can be a light onus which can shift on the Railways, however, it is not the law that even the initial onus of proof which has to be discharged is always on the Railways and not on the claimants. I cannot agree to this proposition of law that the Railways have the onus to prove that a deceased was not a bona fide passenger because no such negative onus is placed upon the Railways either under the Railways Act or the Railway Claims Tribunal Act and the Rules or as per any judgment of the Supreme Court. No doubt, in the facts of the particular case, onus can be easily discharged such as in a case where the deceased may have died at a place where he could not have otherwise been unless he was travelling in the train and in such circumstances depending on the facts of a particular case it may not be necessary to prove the factum of the deceased having a ticket because ticket as per the type of incident of death can easily be lost in an accident. I at this stage take note of a judgment of a learned Single Judge of this Court in Pyar Singh v. Union of India [Pyar Singh v. Union of India, (2007) 8 AD Del 262] which holds that it is the claimant upon whom the initial onus lies to prove his case. I agree to this view and I am bound by this judgment and not by the ratio of the case of Leelamma [Union of India v. Leelamma, 2009 SCC OnLine Ker 903 : (2009) 1 KLT 914] ."

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."

She further submits that if the injured died as a

consequence of his own imprudent conduct and negligent act the

Railways will not be liable as had been held in the case of ―Dharambiri

Devi and Others v. Ministry of Railways and Another‖ reported in 2008

SCC OnLine Del.348. Paragraph no.10 of the said judgment is quoted

below:

"10. The Tribunal has further observed as under:

"The said manner of incident disclosed from the investigation file Ex. RW-1/1 and proved through the Investigating Officer, RW-1 stands probabilised from the fact that the body of the deceased was cut into two halves and ½ of the body was lying inside the railway track whereas the other ½ of the body was lying outside the railway track. Such injuries are possible only when the entire body of the victim comes under the wheels of the train. In other words, he was actually run over by the train and not otherwise. The facts and the surrounding circumstances of this case would clearly indicate that the incident in question did not occur in the manner, as stated by AW-2 and he could not be eyewitness to the incident. The material placed on record would clearly indicate that the deceased while travelling on the joint of the train tried to get down from the train when it slowed down and in the process, he fell down from the train and was run over by the train. The proviso to Section 124A of the Railways Act is entitled to make explicit that the expression 'accident falling' excludes the fall of a passenger as a consequence of his own fault, carelessness, etc. The liability of the respondent railway administration to pay compensation under Section 124A of the Railways Act is not so wide as to constitute an absolute liability to pay compensation to the passenger, who had been injured or died as a consequence of his own imprudent conduct and negligent act. The expression 'self-inflicted injury' in Clause (b) of the proviso to Section 124A of the Act denotes and includes an injury suffered as a direct result or consequence of the wrongful and negligent act on the part of the victim. In the instant case, the material placed on record would clearly indicate that the causative factor for the death of the deceased was the negligent and wrongful act on the part of the deceased, who besides found travelling on the joint of the train had tried or attempted to alight from the moving train. This was the causative factor for the happening of the incident in question. It is, thus, clear from the conduct of the victim that he had endangered his own safety due to his negligence. It is on account of such

wrongful and negligent act on the part of the deceased, he sustained injuries and died. Hence injuries sustained by the deceased were self-inflicted injuries, in the sense they were caused due to his own wrongful and negligent act."

On the point of no eye witness and the scope of section

124(A) of the Railways Act, she further relied in the case of ―Meenadevi

Jaiprakash Gupta and Others v. Union of India‖ reported in 2022(4) AIR

Bom.R 730. On these grounds, she submits that the appeal is fit to be

dismissed.

In view of the above submission of the learned counsels

appearing on behalf of the parties, the Court has gone through the

judgment of the learned Tribunal as well as the L.C.R of the said claim

case. It is an admitted fact that Mau Bind @ Mau Devi was travelling in

the train on 09.08.2007. In view of Exhibit-A/7, i.e. copy of final report,

the contention of the learned counsel for the appellant gets further

fortified that the accident occurred due to fall from the train and this

happened due to heavy rush and jostling between the passengers. There

may not be an eye witness to the incident, however, the investigation

was conducted and after investigation, the final form has been submitted

in which it has come that the accident occurred. The post -mortem

Exhibit-A/4 also speaks about the cause of death due to cut of body into

two pieces. The witnesses have been examined on behalf of the

appellant namely, Nand Kishore Bind @ Nand Kishore Prasad and Ram

Keshri Bind and they have been cross examined by the Railways and

Nand Kishore Bind who was the co-passenger of the deceased, has

categorically stated that the deceased was travelling along with him in

the train and his version was not even doubted by giving any suggestion

in cross examination by the Railways and there was absolutely no

justification in not accepting his version as his version was not even

doubted by giving any suggestion in cross examination and thus, the

finding that he was not a bonafide passenger is not acceptable. In light

of the paragraph nos.25, 26 and 29 of the judgment by the Hon'ble

Supreme Court in the case of ―Union of India v. Rina Devi‖(supra)

whereupon heavy reliance have been placed on behalf of the appellant as

well as the respondent/Railways, it is crystal clear that the appellant has

been able to prove that she was travelling in the train is a bonafide

passenger and considering that the final form speaks of accident and the

co-passenger, on evidence, has stated that she (deceased) was travelling

along with him and even no suggestion has been put forward by the

respondent/ Railways in the cross examination, it cannot be said that the

deceased was not a bonafide passenger.

The deceased fallen due to jostling and death occurred, it

will amount to accident and it cannot be said to be that it was a case of

suicide or it is not a self-inflicted injury, neither due to his own criminal

act nor he was in a state of intoxication or insanity nor due to any natural

cause or disease and, moreover, the Railway has also failed to prove

death has occurred due to her own negligence. Thus, it can be safely

said that her falling down from the train was accidental and the said

accident not falling under the exception of section 124-A of the proviso

and identical was the issue before the Hon'ble Supreme Court in the case

of ―Jameela and Others v. Union of India‖, reported in (2010) 12 SCC

443, wherein it has been held in paragraph no.10 of the said judgment

as under:

"10. It is not denied by the Railways that M. Hafeez fell down from the train and died while travelling on it on a valid ticket. He was, therefore, clearly a "passenger" for the purpose of Section 124-A as clarified by the Explanation. It is now to be seen, that under Section 124-A the liability to pay compensation is regardless of any wrongful act, neglect or default on the part of the Railway Administration. But the proviso to the section says that the Railway Administration would have no liability to pay any compensation in case death of the passenger or injury to him was caused due to any of the reasons enumerated in

clauses (a) to (e)".

If section 123 and 124-A of the Indian Railways Act are

read conjointly for the purpose of interpretation is made taking into

account the intention of the legislature to protect the passengers

sustaining injuries in untoward incidents the term accidental fall from the

train and the deceased was assaulted by the police personnel it is to

prove negligence on the part of the Railway to prove liability on the

railway to compensate the injured or the legal representative of the

deceased.

It is well settled that if the words used in a beneficial or

welfare statute are capable of two constructions, the one which is more

in consonance with the object be preferred. More elaborately it can be

said that the beneficial or welfare statutes should be given a liberal and

not literal or strict interpretation. In the case of ―Union of India V. Nand

Lal Ghaley‖ (2014 SCC Online All 16072) the case of ‗Hindustan Liver

Limited V. Ashok Vishnu Kate' was considered in para 15 of the said

judgment which is quoted here-in-below:-

―15. In Hindustan Lever Ltd. v. Ashok Vishnu Kate [(1995) 6 SCC 326 (vide para 42); 1995 (71) FLR 1040 (SC).] , this Court observed: ―In this connection, we may usefully turn to the decision of this Court in Workmen v. American Express International Banking Corporation, wherein Chinnappa Reddy, J. in para 4 of the Report has made the following observations:

―The principles of statutory construction are well settled. Words occurring in statutes of liberal import such as social welfare legislation and human rights' legislation are not to be put in Procrustean beds or shrunk to Lilliputian dimensions. In construing these legislations the imposture of literal construction must be avoided and the prodigality of its misapplication must be recognized and reduced. Judges ought to be more concerned with the ‗colour' the ‗content' and the ‗context' of such statutes (we have borrowed the words from Lord Wilberforce's opinion in Prenn v. Simmonds). In the same opinion Lord Wilberforce pointed out that law is not to be left behind in some island of literal interpretation but is to enquire beyond the language, unisolated from the matrix of facts in which they are set; the law is not to be interpreted purely on internal linguistic considerations. In one of the cases cited before us, that is, Surender Kumar Verma v. Central Govt. Industrial Tribunal-cum- Labour Court we had occasion to say:

―Semantic luxuries are misplaced in the interpretation of ‗bread and butter' statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions.‖ Francis Bennion in his Statutory Interpretation Second Edn., has dealt with the

Functional Construction Rule in Part XV of his book. The nature of purposive construction is dealt with in Part XX at p. 659 thus: ―A purposive construction of an enactment is one which gives effect to the legislative purpose by--

(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive-and- literal construction) or

(b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive and strained construction).‖ At p. 661 of the same a book, the author has considered the topic of ―Purposive Construction‖ in contrast with literal construction. The learned author has observed as under:

―Contrast with literal construction.--Although the term purposive construction' is not new, its entry into fashion betokens a swing by the Appellate Courts away from literal construction. Lord Diplock said in 1975: ‗If one looks back to the actual decisions of the [House of Lords] on questions of statutory construction over the last 30 years one cannot fail to be struck by the evidence of a trend away from the purely literal towards the purposive construction of statutory provisions'. The matter was summed up by Lord Diplock in this way--

......I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a Court of justice is engaged remains one of construction, even where this involves reading into the Act words which are not expressly included in it‖

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 traveling 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 traveling 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 traveling 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 incident.--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;

(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 traveling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident‖.

In a country where crores of people who travel by railway trains

since everybody cannot afford traveling by air or in a private car by giving

a restrictive and narrow meaning to the expression it will amount to

deprive a large number of victims of train accidents (particularly poor and

middle class people) from getting compensation under the Railways Act.

Thus, when travelling in the train is proved and said occurrence has

taken place which has been found to be genuine in view of final form as

well as the one witness who was co-passenger as discussed hereinabove

it will come under the untoward incident in light of section 123 (C) of the

Railways Act.

In view of above position of law as well as the above discussions

and the facts, it is evident that the Tribunal has taken a hyper technical

view in the matter and the evidences and the materials have not been

properly construed by dismissing the claim petition of the appellant.

There are sufficient materials on record to show that the deceased was

travelling in the train which has been supported by one witness and the

co-passenger on evidence and even no any suggestion has been made by

the respondent/ Railways in the cross examination of the said witness.

Thus, it is proved that she(deceased) was travelling in the train.

The Court comes to the conclusion that the appellant is entitled

to compensation under section 124(A) of the said Act. Moreover, there is

no DRM's report produced in light of Railway Passengers (Manner of

Investigation of Untoward Incident) Rules, 2003, as in view of Rule 13 of

the said Rules, it is a statutory provision to submit the said report.

In the case of "Union of India Vs. Rina Devi" reported in

(2019) 3 SCC 572 the Railway Act, 1989 has been considered by

Hon'ble Supreme Court and that what will be amount of compensation

and interest under the said Act was considered and it was held at para 19

and 30 as under:-

―19. Accordingly, we conclude that compensation will be payable as applicable on the date of the accident with interest as may be considered reasonable from time to time on the same pattern as in accident claim cases. If the amount so calculated is less than the amount prescribed as on the date of the award of the Tribunal, the claimant will be entitled to higher of the two amounts. This order will not affect the awards which have already become final and where limitation for challenging such awards has expired, this order will not by itself be a ground for condonation of delay. Seeming conflict in Rathi Menon [Rathi Menon v. Union of India, (2001) 3 SCC 714, para 30 : 2001 SCC (Cri) 1311] and Kalandi Charan Sahoo [Kalandi Charan Sahoo v. South-East Central Railways, (2019) 12 SCC 387 : 2017 SCC OnLine SC 1638] stands explained accordingly. The four-Judge Bench judgment in Pratap Narain Singh Deo [Pratap Narain Singh Deo v. Srinivas Sabata, (1976) 1 SCC 289 : 1976 SCC (L&S) 52] holds the field on the subject and squarely applies to the present situation. Compensation as applicable on the date of the accident has to be given with reasonable interest and to give effect to the mandate of beneficial legislation, if compensation as provided on the date of award of the Tribunal is higher than unrevised amount with interest, the higher of the two amounts has to be given.

30. As already observed, though this Court in Thazhathe Purayil Sarabi [Thazhathe Purayil Sarabi v. Union of India, (2009) 7 SCC 372 : (2009) 3 SCC (Civ) 133 : (2009) 3 SCC (Cri) 408 : 2010 TAC 420] held that rate of interest has to be @ 6% from the date of application till the date of the award and 9% thereafter and 9% rate of interest was awarded from the date of application in Mohamadi [Mohamadi v. Union of India, (2019) 12 SCC 389 :

2010 SCC OnLine SC 19] , rate of interest has to be reasonable rate on a par with accident claim cases. We are of the view that in absence of any specific statutory provision, interest can be awarded from the date of accident itself when the liability of the Railways arises up to the date of payment, without any difference in the stages. Legal position in this regard is on a par with the cases of accident claims under the Motor Vehicles Act, 1988. Conflicting views stand resolved in this manner.‖

In light of the above judgment compensation as applicable on the

date of accident has to be given with reasonable interest. In view of

above facts, it is evident that the appeal deserves to succeed for the

reasons that the appellant has successfully proved the entitlement to

compensation under the provisions of the said Act due to death occurred

in an ‗untoward incident' and the appellant is entitled to compensation of

Rs.8,00,000/- (Eight Lakhs) as per the last Rules in view of Rule-3

Schedule-II of Railway Accident and Untoward Incidents (Compensation)

Rule, 1990.

In view of the judgment in the case of ―Union of India v. Rina

Devi‖(supra), since the accident is of the earlier period (year 2007) and

the appeal is decided now, the said amount will not carry interest.