Parameswari vs The Union Of India Owning
2021 Latest Caselaw 4441 Mad

                                                                                C.M.A.No.3171 of 2019


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 22.02.2021

                                                       CORAM

                                   THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM

                                                C.M.A.No.3171 of 2019

                     1.Parameswari
                     2.Samikannu                                                  ..Appellants
                                                         Vs.

                     The Union of India owning,
                     South Central Railway,
                     Rep.by its General Manager,
                     Chennai – 600 003.                                          ..Respondent

                     Prayer : Civil Miscellaneous Appeal filed under Section 23 of Railway
                     Claims Tribunal Act, 1989 praying to set aside the order dated
                     22.07.2016, passed in O.A. (II-U).No.8 of 2016 on the file of Railway
                     Claims Tribunal, Chennai Bench.


                                      For Appellants   : M/s.Selvirajesh

                                      For Respondent   : Mr.M.Vijay Anand


                                                   JUDGMENT

The order dated 22.07.2016 passed in O.A.(II-U).No.8 of 2016 is

under challenge in the present Civil Miscellaneous Appeal.

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2. The claimants are the appellants. The Claim Petition under

Section 16 of the Railways Act, was filed on the ground that the

deceased was a contract basis Coolie in a company at Chrompet. He

used to go to his job by train with monthly season ticket. On 28.04.2015

at about 07.50 hours, the deceased went for his job as usual with the

valid train season ticket bearing No.074821555 dated 27.04.2015 to

travel from Tambaram Sanatorium – Maraimalai Nagar and traveled in

train No.40514 Up Fast local EMU train. While the train came in

between Perunkalathur – Tambaram Railway Stations at KM.31/9-31/7

being a peak hours due to heavy crowd, jerk and jolt of the train, the

deceased accidentally fell down from the running train and sustained

severe head injuries and brain scattered out and heavy loss of blood due

to over bleed and died at spot.

3. The application was adjudicated with reference to the

documents and evidences produced by parties. The factum regarding the

accident was established. The deceased was possessing travel ticket,

more specifically, the season ticket. However, the untoward incident

occurred due to hit in a lamppost on account of the negligence and

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carelessness of the deceased. The Railway Claims Tribunal rejected the

application mainly on the ground that the hit on a lamppost is a self-

inflicted injury, because the 'untoward incident' occurred at the instance

of the passenger as he was not prudent enough to travel in a train in

accordance with the Railways Rules. It is contended that every

passenger is expected to travel by following the Railway Rules. Once a

passenger commits an act of carelessness or negligence, then he is not

entitled for compensation, if any untoward incident occurred.

4. The learned counsel appearing on behalf of the

respondent/Railways cited the judgment of the Hon'ble Supreme Court

of India in the case of Union of India vs. Rina Devi reported in CDJ

2018 SC 524, wherein the Apex Court made an observation as follows:

“17.2 In Jetty Naga Lakshmi Parvathi (supra) same view

was taken by a single Judge of Andhra Pradesh after

referring to the provisions of the Evidence Act as follows :

“22. So, from Section 101 of the Indian Evidence Act, 1872, it is clear that the applicants, having come to the court asserting some facts, must prove that the death of the deceased had taken

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place in an untoward incident and that the death occurred while the deceased was travelling in a train carrying passengers as a passenger with valid ticket. Therefore, having asserted that the deceased died in an untoward incident and he was having a valid ticket at the time of his death, the initial burden lies on the applicants to establish the same. The initial burden of the applicants never shifts unless the respondent admits the assertions made by the applicants.

Such evidence is lacking in this case. Except the oral assertion of A.W.1, no evidence is forthcoming on behalf of the applicants. The court may presume that the evidence which could be, and is not produced, would, if produced, be unfavourable to the person who withholds it. The best evidence rule, which governs the production of evidence in courts, requires that the best evidence of which the case in its nature is susceptible should always be produced. Section 114(g) of the Indian Evidence Act, 1872 enables the court to draw an adverse presumption against a person who can make available to the court, but obstructs the availability of such an evidence. The Claims Tribunal, upon considering the material

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on record, rightly dismissed the claim of the applicants and there are no grounds in this appeal to interfere with the order of the Tribunal.”

17.3 In Kamrunnissa (supra), from the circumstances appearing in that case it was held that there was no evidence that the deceased had purchased the ticket. In the given fact situation of that case, this Court inferred that it was not a case of ‘untoward incident’ but a case of run over. It was observed:

“7. The aforestated report also reveals, that the body of the deceased had been cut into two pieces, and was lying next to the railway track. The report further indicates, that the intestine of the deceased had come out of the body. The above factual position reveals, that the body was cut into two pieces from the stomach. This can be inferred from the facts expressed in the inquest report, that the intestines of the deceased had come out of the body. It is not possible for us to accept, that such an accident could have taken place while boarding a train.

8. In addition to the factual position emerging out of a perusal of paragraphs 7 & 8 extracted hereinabove, the report also

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reveals, that besides a pocket diary having been found from the person of the deceased a few telephone numbers were also found, but importantly, the deceased was not in possession of any other article. This further clears the position adopted by the railway authorities, namely, that the deceased Gafoor Sab, was not in possession of a ticket, for boarding the train at the Devangere railway station.”

17.4 We thus hold that mere presence of a body on the Railway premises will not be conclusive to hold that 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. Re: (iv) Rate of Interest.”

5. Relying on the said judgment, the learned counsel for the

respondent/Railways made a submission that the issue can be decided on

facts shown on the attendant circumstances. Thus, the case is to be

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considered from case to case basis and the facts found. The Supreme

Court considered the case, where the deceased had been cut in two

pieces and was there next to the railway track. In such case, it cannot be

construed as an accident falling from a running train and therefore, grant

of compensation was declined.

6. However, the said facts and circumstances would not have any

applicability with reference to the present case on hand. It is an admitted

case that the deceased was a bonafide passenger and the untoward

incident occurred due to hit in a lamppost. Thus, the accident was

established. The passenger sustained injury due to the hit in a lamppost.

Thus, the said factum cannot be compared with the facts with reference

to the judgment of the Supreme Court cited by the learned counsel for

the respondent/Railways, wherein the body was found in a track cut into

two pieces. Even the factum regarding the travel was not immediately

found therefore, the facts and circumstances are entirely different and

cannot be compared at all.

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7. The learned counsel for the respondent reiterated that whenever

the Railway is able to establish that the accident occurred due to

negligence and carelessness of the passengers, then they are not entitled

for compensation, in view of the Exclusion Clause as contemplated

under Section 124-A, Proviso (b) of the Railways Act. In the present

case, it is a self-inflicted injury, in view of the fact that the deceased was

peeping his head outside the train coach and it was a voluntary act and

therefore, it is to be construed as negligence and consequently, the

appellants are not entitled for compensation.

8. Let us now consider the meaning of the word self-inflicted

injuries:

Advanced Law Lexicon defines the word self-inflicted injury as

“in an accident policy providing that the insurer shall not be liable to

the insured for self-inflicted injuries means injuries which are self-

inflicted by the insured when he is capable of rational voluntary action,

and not when he is insane.”

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9. Section 123 (c) of the Railways Act defines untoward incident,

Sub-Clause 2 defines that “the accidental falling of any passenger from

a train carrying passengers”.

10. Thus the word accidental is employed in the statute. The word

accident is defined in Black's Law Dictionary as above indicates that

“An unintended and unforeseen injurious occurrence; something that

does not occur in the usual course of events or that could not be

reasonably anticipated; any unwanted or harmful event occurring

suddenly, as a collision, spill, fall, or the like, irrespective of cause or

blame (the accident was staged as part of an insurance scam).”

11. One may argue a passenger, who is peeping his head or hands

outside the doors and coaches, would amount to a voluntary inflictment,

in view of the fact that one can anticipate in the event of peeping outside

the coach, there is a possibility of accident. Therefore, the word

'accident' is defined as an unforeseen incident, which happens

unintentionally. The question arises, though it is unintentional, one can

foresee that such accident may happen on account of ones Act. Such an

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action can be construed as self-inflicted injury within the meaning of

Section 124-A (a) (b) & (c) of the Railways Act.

12. The accidents occurred undoubtedly on various reasons.

Negligence or carelessness may be on either side. However, while

considering the negligence and contributory negligence, the Courts are

bound to adopt a balanced approach mainly for the purpose of award of

compensation as compensation is welfare legislation. Mere negligence

or carelessness cannot be equated with self-infliction. Five distinctions

are to be drawn between these expressions. Principles of liberal

interpretations are imminent, in view of the fact that the compensation

cannot be rejected merely on the ground of carelessness. The Statement

of objects and reasons are to be borne in mind, while considering the

negligence and carelessness. However, if it is a case of self-inflicted

injury, then the exclusion clause is invoked under Section 124-A of the

Railways Act.

13. Railways pleading negligence and carelessness on the part of

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the passengers should establish an intention to cause self-inflicted

injury. If the intention is established, then exclusion clause may be

invoked and not otherwise. Mens rea is required for committing an act

of self-inflicted injury or death. In common parlance, a passenger

standing nearby the door would not anticipate an accident. The peculiar

circumstances prevailing in our great Nation on account of huge

population are also to be borne in mind before arriving a conclusion

regarding the injuries caused. However, while standing nearby the door

or while boarding in a moving train, if an accident occurs, then the same

cannot be construed as self-inflicted injury, but the injury on account of

carelessness. Such injuries, which cannot be brought within the

parameters of self-inflicted injury, compensation shall not be denied.

14. The duties and responsibilities of the Railway officials are

also to be considered for the purpose of ascertaining the contributory

negligence on the part of the officials of the Railways. Undoubtedly,

passengers are expected to follow the Railway Rules. However, it may

not be possible by the passengers of the train to understand the entire

Rules and Regulations, which may not be available in every coach.

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However, certain rules are known to the passengers even by common

sense. However, it is the duty of the officials to ensure that the

passengers follow such rules scrupulously. Railways are having

protection force. Railway Police are there. Various officials are

employed in trains. Question arises, whether they are performing their

duties and responsibilities to the expected level or as per the rules in

force. When those officials are also not performing their duties and

responsibilities to the expected level, so as to ensure that the Railway

Regulations are followed scrupulously, contributory negligence and

carelessness on the part of the Railway is also to be fixed, while

considering the grant of compensation. When the Railway officials are

issuing tickets over and above the capacity in Unreserved Coaches, they

are also certainly contributing for such carelessness and negligence. In

those circumstances, the facts and circumstances are relevant for the

Courts to arrive a conclusion, whether the injury or death happened on

account of mere negligence and carelessness or an intentional injury,

which is falling within the definition of self-inflicted injury, so as to

invoke the exclusion clause under Section 124-A of the Railways Act.

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15. The Hon'ble Supreme Court of India in the case of

Directorate of Enforcement vs. Deepak Mahajan reported in 1994

SCC (3) 440 made an observation that “though the function of the

Courts is only to expound the law and not to legislate, nonetheless the

legislature cannot be asked to sit to resolve the difficulties in the

implementation of its intention and the spirit of law. In such

circumstances, it is the duty of the court to mould or creatively interpret

the legislation by liberally interpreting the statute”.

16. In Maxwell on interpretation of Statutes, Tenth Edition at

Page 229 the following passage is found:

“Where the language of a statute, in its ordinary

meaning and grammatical construction, leads to a manifest

contradiction of the apparent purpose of the enactment, or to

some inconvenience or absurdity, hardship or injustice,

presumably not intended, a construction may be put upon it

which modifies the meaning of the words, and even the

structure of the sentence. .... where the main object and

intention of a statute are clear, it must not be reduced to a

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nullity by the draftsman's unskillfulness or ignorance of the

law, except in a case of necessity, or the absolute

intractability of the language used.”

17. Therefore, it is well settled that the Courts in order to avoid

difficulty or injustice relating to all statutes, mould the interpretation and

the same so as to achieve true purpose of the enactment. These

principles of statutory interpretation has been settled in the case of

Shailesh Dhairyawan vs. Mohan Balkrishna Lulla reported in 2016

(3) SCC 619 held as follows:

“Though literal rule of interpretation, till some time ago,

was treated as the 'golden rule', it is now the doctrine of

purposive interpretation which is predominant, particularly

in those cases where literal interpretation may not serve the

purpose or may lead to absurdity. If it brings about an end

which is at variance with the purpose of statute, that cannot

be countenanced.”

18. The Gujarat High Court in the case of Pravinbhai Ishwarbhai

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Vaghela vs. Union of India reported in CDJ 2018 GHC 217 examine

the scope of Sections 123 and 124 A and relevant paragraphs are

extracted hereunder:

“44.In the light of the circumstances enumerated in the proviso to Section 124-A that exempt the liability of the Railway Administration to compensate the death or injury suffered by a passenger, it is clear that the legislative intent underlying Chapter XIII of the Act as amended by Act 28/94, in particular Clause (c) of Section 123 and Section 124-A is not to provide compensation to an injury or death suffered by a passenger regardless of the causative factors. In a measure a “no fault liability” is imposed on the Railways, viz., death or injury caused to a passenger on the occurrence of an untoward incident even absent any wrongful act, neglect or default on the part of the Railway Administration would fasten the Railway Administration with liability to pay compensation. Such no fault liability imposed on the Railways to pay compensation does not appear however to be so wide as to constitute an absolute liability and to render the Railways liable to pay compensation to a passenger who is injured or has died as a consequence of his own imprudent conduct, lack of reasonable care warranted in the circumstance of the train travel, acts of bravado,

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foolhardiness, carelessness or other such conduct.

45.The categories of situations enumerated in the proviso to Section 124-A which exempt the Railway Administration from liability include suicide or attempt to suicide by the passenger concerned; his own criminal act;

an act committed in a state of intoxication or insanity and even injury or death on account of a natural cause, disease or medical or surgical treatment unless such medical or surgical treatment is necessitated on account of an injury caused by an untoward incident. Self-inflicted injury is one of the enumerated circumstances that exempt the Railways from paying compensation for death or injury of a passenger.”

19. In paragraph No.46, Gujarat High Court has narrated certain

circumstances, wherein it is stated that the conscious conduct of the

passenger reasonably expected to result in an injury or death to himself,

injury or death as a result of his criminal act or while in a state of

intoxication or while suffering from insanity or on account of a natural

cause or on account of a disease or a medical or surgical intervention,

where such medical or surgical intervention is unrelated to in injury

caused by an untoward incident, exclude the liability of the Railways to

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pay compensation.

20. The cases mentioned in the Judgment of the Gujarat High

Court in paragraph 46 with reference to the scope of the exclusion

clause as contemplated under Section 124-A of the Act, to establish the

clause, the criminal Act or intoxication or insanity or an intention to

invite self-inflicted injury or death is required. Exclusion clause as

contemplated in Proviso to Section 124-A are unambiguous and to bring

the cases within the meaning of the exclusion clause, a Criminal Act and

an intention is to be established. For example, exclusion clause

stipulates 'Suicide'. Suicide is falling under the ambit of criminal law,

for which, an intention is required. Thus, the Railway has to establish an

intention by producing circumstantial or other evidences.

21. In the event of denying compensation in all cases of

negligence and carelessness, undoubtedly, the very purpose and object

of compensation would be defeated. No compensation can be granted at

all. In all such cases, Railways can easily plead that the passengers were

standing nearby the door of the train and therefore, violated the rules

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and sustained injury. That exactly is not the statement of reasons and

object of the Statute. Thus, the exclusion clauses are to be invoked

carefully based on the facts and circumstances and only if an intention is

established, then alone, the exclusion clause can be invoked and not

otherwise. The intention of the legislation also unambiguous that only

on such cases, where there is a voluntary infliction / self-infliction then

alone the compensation is to be excluded and in all other cases the

welfare legislation is progressive and must be liberal in respect of the

grant of compensation.

As far as the Sub-Clause (b) is concerned, it is self-inflicted

injury. Even in a case of self-inflicted injury certainly intention is

required. A man is committing self-inflicted injury, if he has intention to

commit it and in such circumstances, the railway is bound to establish

that there was an intention and the said factum is to be established

through an acceptable document or evidence.

Sub-Clause (c) denotes his own criminal act, is subjecting the

criminal Act contemplates an intention again Sub-Clause (d) also states

that any act committed by him in a state of intoxication or insanity.

Sub Clause (e) states that any natural cause or disease or

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medical or surgical treatment unless such treatment becomes necessary

due to injury caused by the said untoward incident.

22. Broadly considering the scope of the Exclusion Clause, this

Court has no hesitation in arriving a conclusion that in all such cases,

where the Railways established an intention of self-infliction on the part

of the injured / deceased, compensation can be denied and in the

absence of any such intention / mens rea, the benefit of compensation

cannot be denied at all.

23. The Railways are always attempting to take advantage of the

fact regarding the carelessness and negligence of the passengers. If the

carelessness and negligence alone is taken into consideration for the

purpose of denying compensation, then the very purpose and object of

the Act would be defeated.

24. In the present case, the untoward incident occurred due to the

hit in a lamppost. Undoubtedly, there was carelessness on the part of the

passenger, who was travelling in E.M.U train. In metro cities, the

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conditions of the E.M.U train, in most of the coaches, are not having

proper door. The size of the entry and exit are wider and mostly, people

are witnessing that many number of passengers are traveling by standing

nearby the entry point. When the entry point and the exit point are more

wider and large number of passengers are traveling, more specifically,

during peak hours, they have no option, but to travel by standing nearby

the entry way and exit way. If such travel is construed as negligence or

carelessness and the benefit of compensation is denied to those victims,

this Court is of an undoubted opinion that the very purpose and object of

the welfare legislation would be defeated. Therefore, the mere word of

'self-inflicted injury' cannot be confined, so as to exclude the claim to

the victims, who sustained injuries.

25. Thus, the Courts are bound to grant compensation in all cases,

where mere negligence and carelessness alone is believed. If the

Railways are able to establish beyond that regarding the specific

intention on the part of the passengers causing any injury or death, then

alone, the Exclusion Clause can be invoked and not otherwise.

Therefore, even in case of an accident of hit in a lamppost, Railway is

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bound to establish that there was an intention on the part of the

passenger for self-inflicted injury and mere carelessness or negligence is

insufficient to decline compensation. Undoubtedly, some passengers on

account of over-crowd, are peeping their heads outside the doors and

windows. Thus, the passengers may not have any intention for any such

infliction for injury and all the accidents occurred in a lamppost cannot

be construed as self-inflicted injury. Thus the facts and circumstances

are to be considered for the purpose of arriving a conclusion ,whether

there was an intention on the part of the passenger or not.

26. In order to establish intention on the part of the passenger

railway has to establish the facts and circumstances. Yet in another case

of Union of India vs. Radha Yadav in Civil Appeal Nos. 1265 & 1266

of 2019 dated 29.09.2019, the Hon'ble Supreme Court dealt with his

case of similar nature and held that “it was found by the High Court that

in terms of Section 124-A of the Act the 'Principle of Strict Liability'

would arise and as such the Tribunal was not right in denying

compensation to the respondent”. Therefore, the principles of strict

liability was disproved by the Apex Court for grant of compensation. In

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that case, Apex Court granted compensation even by referring Rina Devi

Case.

27. It is re-emphasised that the Exclusion Clauses contemplated

under proviso to 124 (A) of the Railways Act is relatable to criminal

law. Thus, mens rea / intention is required and the said factors are to be

established by railways in order to decline compensation to the victim of

untoward incident.

28. As far as the present case is concerned, the factum regarding

the accident was established. It was admitted that the deceased was a

bonafide passenger, possessing a valid season ticket and sustained injury

by hit in a lamppost. However, the Railway Authorities could not able to

establish that he was peeping his head outside the doors on account of

over-crowd or an account of an intention with voluntary inflictment or

injury or death. This being the factum established, the order of the

Tribunal is infirm and perverse and accordingly the order dated

22.07.2016 passed in O.A.No.8 of 2016 is set aside and the Civil

Miscellaneous Appeal in C.M.A.No.3171 of 2019 stands allowed.

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29. The respondent / Railways is directed to deposit the

compensation amount of Rs.8,00,000/-(Rupees Eight Lakhs only) along

with the accrued interest at the rate of 6% per annum before the Railway

Tribunal concerned within a period of 12 weeks from the date of receipt

of a copy of this judgment and on such deposit, the appellants are

permitted to withdraw each 50% of the award amount with accrued

interest by filing an appropriate application before the Tribunal and the

payments are to be made through RTGS. No costs.

22.02.2021

Pns/Kak

Index: Yes/No Internet:Yes/No Speaking order/Non-speaking order

To

1. The Railway Claims Tribunal, Chennai Bench.

2.The General Manager, The Union of India owning, South Central Railway, Chennai – 600 003.

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S.M.SUBRAMANIAM, J.

Pns/Kak

C.M.A.No.3171 of 2019

22.02.2021

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