Rekha Devi & Ors vs Union Of India
2023 Latest Caselaw 2003 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    (Civil Miscellaneous Appellate Jurisdiction)
                           M.A. No.701 of 2018

Rekha Devi & Ors.                                        .....    ......     Appellants
                                      Versus
Union of India                                                 ....     .... Respondent
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CORAM : HON'BLE MR. JUSTICE KAILASH PRASAD DEO

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      For the Appellants             : Mr. Rajesh Kumar Jha, Advocate
      For the Respondent             : Mr. Akash Deep, Advocate
                                     : Mr. Bikram Kumar Sah, Advocate



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

Order No.07 /Dated: 09th May, 2023 The appellants Rekha Devi, W/o the deceased Ajay Thakur, Priti Kumari, minor daughter of the deceased Ajay Thakur, Bittu Kumar, minor son of the deceased Ajay Thakur and Anjani Kumari, minor daughter of the deceased Ajay Thakur all resident of Village/Mohalla-Madhopur, PO- Madhopur, PS-Satgawa, District-Koderma (Jharkhand) have preferred this appeal against the dismissal of their Claim Case No.OA (iiu)/RNC/2007/0062, OLD No. OU-70062/07, passed by learned Member (Technical) Railway Claims Tribunal, Ranchi Bench, Ranchi vide Judgment dated 08.12.2014, whereby the claim application of the applicants has been rejected on the ground that applicants are not entitled to compensation under Section 124-A of the Railway Act.

Learned counsel for the appellants, Mr. Rajesh Kumar Jha has submitted, that the learned Railway Claims Tribunal has completely failed to consider the fact brought on record and the judgment passed by the Hon'ble Supreme Court in the case of Union of India vs. Prabhakaran Vijaya Kumar, & Ors. reported in 2008(9) SCC 527 and Union of India vs. Rina Devi, reported in (2019) 3 SCC 572.

Learned counsel for the appellants, Mr. Rajesh Kumar Jha has further submitted, that fact of the case is very relevant. Ajay Thakur husband

and father of the appellants, aged about 32 years, holding 2 nd class ticket ex- Koderma to Dhanbad had boarded Train No.302 DN at Koderma station on 08.05.2007. He was pushed to the other side due to rush in the compartment and fell down from the train from another gate. He was run over by Goods train coming in the UP line and died in course of treatment.

Learned counsel for the appellants, Mr. Rajesh Kumar Jha has further submitted, that to that effect the applicants/appellants have filed claim application and examined the Applicant, Rekha Devi herself as A.W.-1 and Manoj Kumar as A.W.-2 and there is an evidence from the applicants that deceased had purchased ticket for going to Dhanbad by Train No.302 DN and also boarded the train with lot of difficulty as there was heavy rush in the compartment. There is evidence that Ajay Thakur has fell down from opposite door and was run over by Goods train but learned Railway Claims Tribunal has wrongly considered the evidence of witnesses and passed order contrary to the judgment passed by the Hon'ble Supreme Court in the case of Union of India vs. Prabhakaran Vijaya Kumar & Ors. reported in 2008(9) SCC 527. Paras 14 to 17 and 22 to 24 of the judgment 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."

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."

Learned counsel for the appellants, Mr. Rajesh Kumar Jha has also relied upon the judgment of Hon'ble Supreme Court in the case of Union of India vs. Rina Devi, reported in (2019) 3 SCC 572. Paras-25 and 29 of the judgment may profitably be quoted hereunder:-

"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 -5- 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. 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, Mr. Rajesh Kumar Jha has thus submitted, that claim application was fit to be allowed as there is no contrary evidence adduced on behalf of the Railway but the learned Railway Claims Tribunal has failed to consider the same and dismissed the claim application holding that applicants are not entitled to compensation under Section 124-A of the Railway Act as the deceased was not a victim of untoward incident.

Learned counsel for the appellants, Mr. Rajesh Kumar Jha has further submitted, that there is a delay of 1352 days in preferring the appeal and for condonation of the same I.A. No.10370 of 2018 has been filed.

Learned counsel for the appellants, Mr. Rajesh Kumar Jha has further submitted, that counter-affidavit has been filed in the matter on 17.03.2021.

Learned counsel for the appellants, Mr. Rajesh Kumar Jha has further submitted, that no specific objection has been made with regard to

I.A. No.10370 of 2018 rather a comprehensive counter-affidavit has been filed by the respondent.

Learned counsels Mr. Akash Deep and Mr. Bikram Kumar Sah on instruction of learned counsel for the respondent-Railway, Mr. Vinod Kumar Sahu has submitted, that in the counter-affidavit at para-15 a plea has been taken by the Railway, opposing the condonation of delay that the grounds for condoning the delay of such a long period of 1352 days has not been explained and as such the delay may not be condoned.

Learned counsel for the respondent-Railway has further submitted, that learned Tribunal has rightly considered the evidence on record and this case is fit to be dismissed as such the rejection of the claim application by the learned Railway Claims Tribunal does not required any interference.

Learned counsel for the respondent-Railway has relied upon the paras-11, 12, 13 and 14 of the counter-affidavit, and submitted that the same may profitably be quoted hereunder:-

11.... "That it is stated and submitted that Ld. Tribunal has heard both the sides and came to the finding, while deciding the issue no.2, 3 and 4 it has been found that the A.W.(1) has appeared and has affirmed the contention made in the claim application. During the cross-examination she has stated that the she did not see the incident. As such, her evidence was based on hearsay."

12.That it is stated and submitted that the A.W.(2) Manoj Kumar has stated that he was relative of deceased and on 08.05.2007 both of them had purchased ticket for going to Dhanbad by 302 DN and also boarded the train with a lot of difficulty, as there was heavy rush in the compartment. He reiterated the events described in the plaint that as a result of rush they were pushed by the passengers whereby the deceased Ajay Thakur fell down from the opposite door and was run over by the Goods Train. He got down from the train with great difficulty. During cross-examination he stated that they have purchased separate tickets. That the police officer of G.R.P./Koderma on 09.05.2007 examined him, however he has not seen the incident with his own eyes nor did he gave statement before the police officer. The learned Tribunal has found that there are certain grave/peculiar fact which raises serious doubts on his evidence. His existence first came to be known, when he appeared as witness. There is no mention of his name in the claim application even though he was a relative. Though he described the same sequence of events in his affidavit as mentioned by the claimant/appellant in her application, during cross- examination he contradicted himself by stating that he has not seen the incident. Even though he affirmed that he was relative of the deceased being his uncle and had got down after the alleged incident, as per records, he played no part after the incident as it was the RPF Hawaldar, who had carried his injured relative to the hospital and recorded his statement in the hospital as the informant in this case. This is certainly against normal human conduct, particularly when his close relative was fatally injured. Though, he sworn under affidavit that on the next date after the incident i.e. 09.05.2007 he was examined by the Officer of GRP/Koderma, however during cross-examination he contradicted himself by denying the same.

This is corroborated by record as his name is nowhere mentioned as a witness in the F.I.R or Final Report (photo copies). Further, A.W.(2) has not failed the separate ticket which he alleged he had purchased from Booking

Counter at Koderma Station to prove that he had purchased the same and was travelling with the deceased Ajay Thakur. In view of the above and serious contradiction, there is every reason to discard his deposition that he along with the victim had purchased two tickets and after boarding the train, the victim was pushed by passengers out of the opposite door due to rush and fell down, being considered not trustworthy and reliable. In this context, the documentary evidence filed by the Applicant to establish his case was examined. The informant in this case is one Sri Sarfuddin Khan, Havaldar of RPF Post/Koderma, who had given his Fardbeyan to GRP/Koderma at the Sadar Hospital at 19.45 PM on 08.05.2007. He stated that he was on duty and that at 16.15 hrs the train 302 DN was standing at the platform. At that time the Goods train was passing in the UP Line. On hearing hue and cry that one person was hit and lying injured to the Sadar Hospital, Koderma. A diary was recovered and the person could be identified as Ajay Thakur. His Fardbeyan assumes vital importance as he was only one who had firsthand knowledge about the incident. The Bench observes that the applicant filed the photocopies of the FIR and the Final Report. The applicant was directed by the learned Tribunal to submit the original/certified copies of the F.I.R., Final Report and inquest Report to support her case but the Applicant failed to submit the authentic documents. However, the Respondent in its enquiry report of DSC/RPF/ECR/DHN (Ext. R3) has relied on the above police documents in filing the D.R.M's report (Ext. R2). The Final Report (photocopy) refers to the fardbeyan of the informant states that the victim had boarded the train no. 302 DN and there was heavy rush. It further added that the deceased had tried to board the stationary train 302 DN, fell down and was run over by the Goods train coming on the UP adjacent line. There is no mention about the applicant's contention that the victim had boarded the train from the platform side and was pushed by the passengers to the other side and fell down from the opposite door when the train started moving. In my opinion, it is highly improbable that the victim will fall off in the manner claimed by the applicant, when as no credible evidence has been adduced to prove the same, particularly when the evidence of the A.W. (2) produced by the applicant has been found to be very unreliable. The learned Tribunal further found that it seems remote possibility that within a space of 5 minutes (the train had arrived at 16.10 hrs the and departed at 16.15 hrs) a person in an overcrowded compartment would be pushed from the door on the platform side to the other gate on the offside and fell down as alleged by the Applicant. Rather, the Tribunal has placed reliance on the findings of the Final Report (photocopies) prepared after investigation, taking statement of witnesses and inspection of site, which mentions that the victim fell down while boarding the train.

13. That it has further been found that this is on the balance of probabilities seems plausible and which must be from the offside as the circumstances warrant considering the admitted fact of both sides that the person after he fell was immediately run over by the Goods train coming on the adjacent track. This act of the deceased was certainly reckless and imprudent exposing him to great risk, endangering his own life and limbs which resulted in his tragic death. Thus, in view of the facts & circumstances and in the absence of the applicant adducing authentic oral evidence and corroborating documents, the learned Tribunal very rightly hold that the applicant has failed to discharge the initial burden of proof and establish that the deceased had accidentally fallen from train. Rather, by the the preponderance of probability, the Tribunal has hold that Ajay Thakur had died due to his criminal negligence which squarely falls under self-inflicted injury which would exempt the railway from the liability to compensation under exceptional clause of the Proviso of Section 124-A of the Act. Thus, the deceased was not a victim of an untoward incident as defined under Section 123 (C) (2) of the Railways (Amendment) Act, 1994. The issue is decided against the appellants/claimants.

14. That it is stated and submitted that while deciding the issue no. 1 it has been stated by the appellants/claimants that the ticket was lost during the incident. The testimony of the A.W. (2) is that he had purchased two tickets being the co-passengers but the appellants/ claimants could not establish the deceased died due to an untoward incident. Therefore, the Ld. Tribunal found this case as the victim was not a bonafide passenger in absence of any journey ticket. Resulting, it has been decided while deciding the issue no. 5 & 6 in view of the aforementioned discussion the appellants/claimants are not entitled to compensation U/S 124 (A) of Railways Act. As such, this memo of appeal is also liable to be dismissed.

Heard, learned counsel for the appellant and learned counsel for the respondent-Railway.

This Court is not inclined to adjourn the matter, where the claimants are the poor sufferer since 08.05.2007, accordingly this Court Court has taken up the matter as accident is of dated 08.05.2007.

So far delay of 1352 days is concerned, it is a benevolent legislation where the claimants have lost their bread earner and it was duty to the State Legal Services Authority/District Legal Services Authority to pursue such matter but in absence of financial support and in absence of any legal support to the victim widow and minor children, this Court consider that delay of 1352 days is fit to be condoned in the interest of justice, accordingly the delay is hereby condoned.

The matter is taken up for final disposal. It appears that Railway has taken a plea that the deceased has no ticket but there is consistent evidence that deceased had purchased the ticket and fell down from the another gate of the compartment because of pull and push of the passengers and run over by Goods train.

In view of the judgment passed by the Hon'ble Supreme Court in the case of Prabhakaran Vijaya Kumar (supra) as well as Rina Devi (supra) as quoted above, the claim application is fit to be allowed.

Accordingly the appeal is hereby allowed.

Let the L.C.R be send back to the Court concerned.

The respondent-Railway is directed to indemnify the claimants sum of Rs.4,00,000/- along with interest @ 7.5 % from the date of filing of the claim application i.e., 20.09.2007 till the date of indemnifying the award in the account of the claimants as minor daughters and son of the deceased have attained majority.

The claimants are directed to furnish their bank account number of Nationalized Bank to the Railways/Railway Claims Tribunal, Ranchi within a

period of two weeks.

It is expected that the Railways shall indemnify the award within a period of 60 days.

(Kailash Prasad Deo, J.) Rohit/-