Smt. Tetri Devi vs Union Of India Through The General ...
2023 Latest Caselaw 1866 Jhar

          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             (Civil Miscellaneous Appellate Jurisdiction)
                                     M.A. No. 148 of 2018
                                             ......

1.Smt. Tetri Devi

2.Suryadev Yadav

3.Priya Kumari

4.Priyanka Kumari

5.Puja Kumari

6.Bandhan Yadav @ Bandhan Mahto

7.Chuniya Devi ...... Appellants Versus Union of India through the General Manager South Eastern Railway, Kolkata (W.B.) . .......Respondent .....

      CORAM:        HON'BLE MR. JUSTICE KAILASH PRASAD DEO
                                     ......
      For the Appellants                  : Mr. Arvind Kr. Lall, Advocate
      For the Respondent-Railway          : Mrs. Alpana Verma, Advocate
                               -----

The matter is being taken up through Video Conferencing. Learned counsel for the parties have no objection with it and submitted that audio and video qualities are good.

08/ Dated: 02/05/2023

Heard, learned counsel for the appellants, Mr. Arvind Kumar Lall and learned counsel for the respondent-Railway, Mrs. Aplana Verma.

The appellants, namely, 1.Smt. Tetri Devi, 2.Suryadev Yadav, 3.Priya Kumari, 4.Priyanka Kumari, 5.Puja Kumari, 6.Bandhan Yadav @ Bandhan Mahto and 7.Chuniya Devi have preferred this Miscellaneous Appeal for setting aside the order dated 07.07.2017 passed by learned Member (Judicial) Railway Claims Tribunal, Ranchi in Case No.OA(IIU)/RNC/144/2016, whereby the application filed by the claimants has been dismissed on the ground that deceased was boarding from the wrong side where there is no platform and involves an obvious risk to limb and life, which has not been covered within the expression 'accidental falling from train'. Therefore, it was not a case of untoward incident as defined under Section 123(c)(2) of the Railways Act, 1989. The ticket produced on record is likely to be tainted as the same has not been mentioned in the report of unnatural death case No.28 of 2016 prepared by ASI, Sri Loknath Bhagat, who has been examined as C.W.-1 on 25.05.2017.

Learned counsel for the appellants, Mr. Arvind Kumar Lall has submitted, that deceased, Mahadev Yadav has fallen accidentally from the running train because of push and pull of the passengers. The DRM's report has been brought on record. The applicants have examined three witnesses, A.W.-1 (Sri Suryadev Yadav), A.W.-2 (Sri Balram Gope) and A.W.3 (Sri Tiju Yadav) and also exhibited

documents such as fardbeyan of Tiju Yadav, which has been marked as Exhibit- A1, inquest report as Exhibit-A2, Journey ticket as Exhibit-A3, FIR as Exhibit- A4, Final report as Exhibit-A4(a) and photo copy of dead body receipt. On the other hand, respondent has not produced any oral evidence, but certain documentary evidence have been brought on record such as DRM's report- Exhibit R1, Statement of J.L. Baxla, SM/Tangerbasuli- Exhibit R2, Statement of the applicant No.1- Exhibit R3, Statement of Tiju Yadav- Exhibit R4, Statement of Sahabuddin Ansari- Exhibit R5, Statement of Gopal Prasad- Exhibit R6, Map of place of occurrence-Exhibit R7, PM report- photo copy, Letter of SI/RPF/LAD- Exhibit R8 and final report- photo copy.

Learned counsel for the appellants, Mr. Arvind Kumar Lall has further submitted, that DRM's report has not been taken note of by the Railway Claims Tribunal, which speaks about the availability of ticket with the deceased.

A.W.-1 (Sri Suryadev Yadav) has categorically stated in his affidavit that deceased has purchased ticket, which has not been controverted by the Railway by producing any documentary evidence rather a mistake has been committed by the ASI while preparing the inquest report upon which high reliance has been placed by the Railway Claims Tribunal contrary to the judgment passed by the Hon'ble Apex Court in the case of National Insurance Company Limited vs. Chamundeswari and Ors. reported in 2021 SCC OnLine SC 849, where the Apex Court has held that the claim Tribunal has to rely upon the evidence adduced before the Claim Tribunal. They cannot rely upon the document of police case.

Learned counsel for the appellants, Mr. Arvind Kumar Lall has further submitted, that the learned Tribunal has not considered the judgment passed by the Apex Court in the case of Union of India vs. Prabhakaran Vijaya Kumar, reported in 2008(9) SCC 527, paras14 to 17 and 22 to 24 of which may profitably be quoted hereunder:-

"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 defendant's 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" (see Fleming on Torts, 6th Edn., p. 302).

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 twofold: (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 (vide Torts by Michael Jones, 4th Edn., p. 267).

Learned counsel for the appellants, Mr. Arvind Kumar Lall has placed reliance upon the judgment passed by the Apex Court in the case of Union of India vs. Rina Devi, reported in (2019) 3 SCC 572, paras 22, 25 and 29 of the same may profitably be quoted hereunder:-

22.In Joseph P.T., the victim received injuries in the course of entering a train which started moving. Question was whether his claim that he had suffered injuries in an "untoward incident" as defined under Section 123(c) could be upheld or whether he was covered by proviso to Section 124-A clause (b). The High Court held that while in the case of suicide or attempt to commit suicide, intentional act is essential. Since the concept of "self-inflicted injury" is distinct from an attempted suicide, such intention is not required and even without such intention if a person acts negligently, injuries suffered in such an accident will amount to 'self inflicted injury'. Relevant observations are : (SCC OnLine Ker para 24) "24. Therefore, the two limbs of the proviso should be construed to have two different objectives to be achieved. We can understand the meaning of the term "self-inflicted injury" not only from the sources provided by the dictionaries, but also from the context in which it is used in the statute. The term "self-inflicted injury" used in the statute can be deduced as one which a person suffers on account of one's own action, which is something more than a rash or negligent act But it shall not be an intentional act of attempted suicide. While there may be cases where there is intention to inflict oneself with injury amounting to self-inflicted injury, which falls short of an attempt to commit suicide, there can also be cases where, irrespective of intention, a person may act with total recklessness, in that, he may throw all norms of caution to the wind and regardless to his age, circumstances, etc. act to his detriment. Facts of this case show that the appellant attempted to board a moving train from the offside unmindful of his age and fully aware of the positional disadvantage and dangers of boarding a train from a level lower than the footboard of the train. It is common knowledge that the footboard and handrails at the doors of the compartment are designed to suit the convenience of the passengers for boarding from and alighting to the platform. And at the same time, when a person is trying to board the train from the non- platform side, he will be standing on the heap of rubbles kept beneath the track and that too at a lower level. Furthermore, he will have to stretch himself to catch the handrails and struggle to climb up through the footboard hanging beneath the bogie. The probability of danger is increased in arithmetic progression when the train is moving. Visualising all these things in mind, it can only be held that the act of the appellant was the height of carelessness, imprudence and foolhardiness. It is indisputable that the purpose of Section 124-A of the Act is to provide a speedy remedy to an injured passenger or to the dependants of a deceased passenger involved in an untoward incident. Section 124-A of the Act provides for compensation to a passenger or his dependants who suffers injury or death, as the case may be, in an untoward incident even where the untoward incident is not the consequence of any wrongful act, neglect or default on the part of the Railway Administration. To this extent, it can be said to be a no-fault liability. Even though the provisions relating to payment of compensation in the Act can be said to be a piece of beneficial legislation, it cannot be stretched too much to reward a person who acts callously, unwisely or imprudently. There is no provision of law brought to our notice permitting the passengers to entrain from the non-platform side of the railway track. However, the counsel for the respondent did not show any provision of law prohibiting the same. The question whether an act by which a passenger sustains injury while boarding a train through the offside, is a self- inflicted injury or not depends on the facts of each case. Merely because a person suffered injury in the process of getting into the train through the off side, it may not be sufficient to term it as a self- inflicted injury, unless the facts and circumstances show that his act was totally imprudent, irrational, callous and unmindful of the consequences. All the facts and circumstances established in this case would show that the act of the appellant was with full knowledge of the imminent possibility of endangering his life or limb and, therefore, it squarely comes within the term "self- inflicted injury" defined in Section 124-A Proviso (b) of the Act."

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 judgment of this Court in United India Insurance Co. Ltd. v. Sunil Kumar laying down that plea of negligence of the victim cannot be allowed in claim based on 'no fault theory' under Section 163A 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 124A merely on the plea of negligence of the victim as a contributing factor. "29. 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."

Learned counsel for the appellants, Mr. Arvind Kumar Lall has thus submitted that there was sufficient material to consider that victim fall from the running train because of push and pull of the passengers and thus it was untoward accident as no contrary evidence has been brought on record, as such, impugned order may be set aside and the compensation may be allowed to the tune of Rs.4 lacs prevailing at that time along with interest @ 7.5% per annum, in view of the judgment passed by the Apex Court in the case of Dharampal & Sons Vs. U.P. Transport Corporation, reported in (2008) 4 JCR 79 SC from the date of filing of the claim application till the date of indemnifying the award.

Learned counsel for the respondent-Railway, Mrs. Alpana Verma has opposed the prayer and submitted that impugned order does not require any interference by the Court as the learned Tribunal has considered that it was not an untoward incident where the deceased has lost his life.

Considering the rival submission of the parties and looking into the facts and circumstances of the case, it appears that deceased, Mahadev Yadav purchased a ticket bearing No.90490018, which has already been brought on record as Exhibit- A/3 and has been mentioned in the DRM's report, which has been brought on record as Exhibit- R1, as such, the finding recorded by the learned Tribunal on the basis of the inquest report, which is Exhibit-A2 prepared by the ASI, Sri Loknath Bhagat is not sustainable in the eyes of law.

So far untoward incident is concerned, there is no evidence on behalf of the Railway that the deceased was boarding the train from the wrong side, if it was so why a case for violation of Railway rules has not been instituted against the deceased, which could have ultimately submitted in the final form as the accused has died, but no contrary evidence has been brought on record rather the judgment passed by the Apex Court with regard to the Prabhakaran Vijaya Kumar (Supra) and Rina Devi (supra) as referred above are fully applicable to the present case.

In absence of any contrary evidence of the Railways, the instant Miscellaneous Appeal is allowed.

The Railway is directed to pay Rs.4 lacs to the applicant along with interest @ 7.5% per annum from the date of filing of the claim application till the date of indemnifying the award.

Let the Lower Court Records be sent back to the learned Court below.

(Kailash Prasad Deo, J.) R.S./