Elambal vs Union of India

S. Vimala, J.—When strict liability is the basis of liability, whether it is enough for the Claimants to show that the death injury, is not covered by any of the exceptions to Section 124-A of the Railways Act, 1989, and it is out of an untoward incident, which could be a matter of inference by invoking the Concept of Notional Extension, is the issue to be decided in this Appeal.

The Legal Representatives of the deceased Durai Somanathan filed the Application for Compensation before the Railway Claims Tribunal, claiming a sum of Rs. 4,00,000 in respect of the death of Durai Somanathan in an untoward incident, which occurred on 4.3.2007 at Dindigul Railway Station

Brief facts:

On 4.3.2007 the deceased, his wife/the First Appellant and his daughter/Fifth Appellant came to the Dindigul Railway Station and purchased a Combined Ticket No.015504067, dated 4.3.2007 for traveling from Dindigul to Kumbakonam. All the three of them boarded the Train and then they came to know that they had boarded a wrong train, which was proceeding to Erode. The deceased attempted to get down and succeeded, but before the other two family members could get town, the Train started moving. The deceased, who got alighted from the Train, ran along the platform along with the Train and in the process, he suffered shock, heart ailment, fell down on the platform and he died instantly in the same place.

Whether this incident is an untoward incident as contended by the Claimants or is a case of natural death as contended by the Railway is the issue canvassed before the Railway Claims Tribunal.

The following six issues were framed by the Railway Claims Tribunal

"1. Was the deceased a bona fide passenger in the Train, as alleged?

Was there an untoward incident - involving the deceased as envisaged under Section 123(c)(2) of the Railways Act, 1989, as alleged ?

3 Whether all the Applicants are the dependents of the deceased as alleged as per Section 123(b)(i) to(iv) of the Railways Act, 1989 ?

4 Whether all the Applicant(s) are entitled to Compensation as per Section 123(b) of the Railways Act. 1989 and if so, the quantum for each ?

Whether the Applicants are entitled to the interest claimed ?

To what other relief if any ?"

The Tribunal gave a finding that the Applicants viz., the wife and children are the only dependents as contemplated under Section 123(b)(i) of the Railways Act. 1989. The finding of the Tribunal was that even though the Applicants have proved that the deceased was a bona fide passenger of the train in question, they have not proved that the deceased died in an untoward incident. On this findings, the Tribunal dismissed the Claim Petition. Challenging the dismissal of the Claim Petition, the present Appeal has been filed by the Claimants.

The main contention of the learned Counsel for the Appellants is that the death of the deceased was on account of the untoward incident as defined under Section 123(c)(2) of the Railways Act, 1989 and therefore, the Railway Claims Tribunal ought to have allowed the Claim Petition.

7.1. The learned Counsel for the Respondent strongly relies upon the admission made by the Legal Representatives of the deceased that the deceased had been suffering from heart ailment for a period of ten years and therefore, when he died on account of cardiac arrest as supported by the Post-mortem Certificate, the death must be construed only as a natural death and not a death on account of untoward incident. In other words, the contention is that this incident would not come within the purview of "accidental falling of a passenger from a train carrying passengers" as defined under Section 123(c) of the Railways Act.

7.2. It is not in dispute that the ultimate cardiac arrest was on account of the "untoward incident" that occurred on the date of journey. So, whether should it be construed as a case of natural death, under the stated circumstances, is the main issue to be considered.

7.3. In order to appreciate the contention, with regard to cause of death, it is necessary to look into the scope and object of Sections 123, 124 & 124-A of the Railways Act.

7.4. Sections 123, 124 & 124-A lay down the liability of the Railway Administration for death and injury to passengers due to "accident" and "untoward incident". While "accident" has been defined in Section 123(a) of the Act to mean an accident of the nature described in Section 124 of the Act "untoward incident" has been defined in Section 123(c) to mean the "accidental falling" of any passenger from a train carrying passengers. In the present case, we are concerned only with "untoward incident" as defined in Section 123(c) of the Act and not "accident" as defined in Section 123(a) of the Act. In terms of Section 124-A of the Act, the Railway Administration is liable to pay Compensation to a person who has been injured or dependent of a passenger who has been killed because of an "untoward incident" while he was traveling in a train as a bona fide passenger. Sections 123(c) & 124-A of the Vet read as under:

"123(c) "untoward incident" means -

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

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

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

by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a Railway Station; or

(2) the accidental falling of any passenger from a train carrying passengers. "

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 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 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 "

A bare reading of Section 124-A of the Act shows that when in the course of working a Railway an untoward incident occurs, which results in the death of a passenger, the Railway Administration will be liable to pay Compensation to the dependents of such a passenger to such extent, as may be prescribed in the Act. As per the proviso to Section 124-A of the Act, no Compensation shall be payable under that Section by the Railway Administration if the passenger dies or suffers injuries due to:

(a) suicide or attempted suicide by him,

(b) self-inflicted injury;

(c) his own criminal act, etc. etc.

7.5. Whether the incident took place while falling from the Train is the issue to be considered, so as to bring the death within the ambit of ''untoward incident''.

Considering the benevolent objective of Workmen''s Compensation Act and considering the social objective to be achieved, the Theory of Notional Extension was introduced to render justice to the bereaved family. The Concept of Notional Extension under the Workmen''s Compensation Act for granting Compensation was made applicable, when there has been unrebutted evidence to show that the death of the deceased has occurred due to stress and strain resulting in cardiac arrest on his way while he was returning after duty, in the case reported in United India Insurance Co. Ltd. v. Susheela, 2004 LLR 425. The same principle will be applicable in this case also, as the principle involved in granting Compensation is not based on Fault Theory, but based on No Fault Theory., i.e., Strict Liability.

8.1. The learned Counsel for the Appellants relied upon a passage from the Text Book of Medical Jurisprudence and Toxicology where causes of unnatural death has been enlisted. It has been mentioned therein that the precipitating factor may be a blow or a fall. In Clause (vii), it has been mentioned that fright, dread, anger or any other emotional excitement may lead to such a degree of shock as to result, the termination of the functions of the heart, ultimately leading to cardiac arrest.

8.2. Pointing out these details, it is contended by the learned Counsel for the Appellants that the stress and strain of running along with the train, leading to death, in pursuance of the family members travelling in the train and not being able to get down, should be considered as an ''untoward incident''. It is also contended that the liability, contemplated under the Railway Claims Tribunal Act, is not a liability on fault and it is a strict liability and once it is proved that the accident was due to an untoward incident, the liability is automatic.

The decision reported in Jameela v. Union of India, AIR 2010 SC 3705, is relied upon by the learned Counsel for the Appellants wherein it has been held that negligence of passenger does not have effect on liability of Railways. Claimants are entitled to Compensation with interest.

9.1. The Concept of Strict Liability has been discussed in the decision reported in Union of India v. Prabhakaran Vijaya Kumar and others, 2008 (4) MLJ 323 (SC), wherein, it has been held by the Hon''ble Supreme Court that it is a duty of the State under our Constitution to function as a welfare state and to look after the welfare of its citizens. In various Welfare Statutes, the Principle of Strict Liability has been provided to give insurance to people against death and injuries, irrespective of fault. Therefore, irrespective of the fault on the part of the Claimant, the Legal Representatives can make a claim provided the untoward incident does not fall under the Exception to Section 124-A of the Railways Act.

9.2. The following are the exceptions to Section 124-A of the Railways Act:

"(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."

9.3. It is not the case of Railways that the death is covered under any of the Exceptions stated above. When it is proved that the incident is not covered by any of the Exception provided, then it is the responsibility of the railway to pay Compensation.

Under such circumstances, the Order passed by the Railway Claims Tribunal has to be set aside and it is set aside accordingly and this Civil Miscellaneous Appeal is allowed. No costs.

Railway Accidents & Untoward Incidents (Compensation) Rules, 1990 in the Schedule to Rule 3, provides for a sum of Rs. 4,00,000. in respect of death. The claim is made only in accordance with the prescribed Rules and to the prescribed extent. Therefore, the Claim Petition is allowed. The Compensation of Rs. 4,00,000 is payable with Interest at 6% per annum from 30.7.2008 and thereafter 9% per annum from the date of Order till the date of deposit.

The apportionment to be made inter se between the Claimants is the next issue to be considered. It is represented that Second, Third, Fourth and Fifth Appellants are already married. Each of the Appellants 2, 3, 4 & 5 will be entitled to a sum of Rs. 25,000 with proportionate Interest and the First Appellant will be entitled to a sum of Rs. 3,00,000 with proportionate interest and costs. On the Respondent deposing such amount before the Tribunal, the Claimants will be entitled to withdraw the same, in accordance with the proportion indicated above.