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Judgment
Sandipkumar C. More, J.
The appellants, who are the original claimants have challenged the judgment and award dated 21.11.2016 in Original Application No. (IIu)/NGP/2011/0427 passed by the learned Member of Railway Claims Tribunal, Nagpur (hereinafter referred to as “the learned Tribunal”) refusing to grant of compensation to them. The Original Claim Petition was filed by mother and married daughter of the deceased Vijaysingh Jeevansingh Thakur. However, during the pendency of this appeal, married daughter of late Vijaysingh i.e. present appellant No.2 died and therefore, her legal representatives were brought on record.
Background facts are as under :-
As per the appellants/claimants, deceased Vijaysingh Jeevansingh Thakur on 10.10.2011 was traveling from Adilabad to Kinwat by Adilabad-Tirupati-Krishna Express bearing train No. 17406 with a valid journey ticket bearing No. 61011791. Due to heavy rush in the train, he was standing near the door. When the said train reached near km. No. 116/6 & 116/7 on platform No.1 of Kinwat Railway Station, the deceased fell down from the running train due to sudden jerk and came under the wheels and was seriously injured. Though he was shifted to the hospital, but he succumbed to the injuries. An accident report was lodged, wherein the cause of death was shown due to falling from the train. The appellants/claimants, then filed the Original Application for compensation to the tune of Rs. 4,00,000/-.
The respondent-Union of India, through General Manager, South Central Railway, resisted the claim application under its written statement, wherein it was primarily contended that no such incident of causing death of Vijaysingh, within the meaning of the provision of Section 123 (c) read with Section 124(a) of the Railways Act, 1989, had taken place. According to respondent/Railway, the appellants/applicants are not entitled for any compensation, since the deceased had died due to his own negligence and fault. Thus, the respondent/Railway had prayed for dismissal of the claim application.
The learned Tribunal after conducting the trial/enquiry, dismissed the claim of appellants for compensation and hence this appeal.
The learned counsel for the appellants/claimants submits that, the deceased Vijaysingh had definitely died in the untoward incident i.e. due to sudden jerk, he fell down from the running train. He pointed out that the deceased was having valid ticket, which was not disputed by the respondent-Railway. According to him, the learned Tribunal definitely erred in rejecting the claim of the appellants by holding that he died due to his own fault. He pointed out that nobody from the witnesses examined, had in fact witnessed the accident, but still the learned Tribunal erroneously held that it was established by the Railway from the documents on record that the deceased had died due to his own fault, when tried to de-bord the running train. He pointed out that no document shows that deceased was trying to de-boarded from off-side of Railway. According to him, from the spot panchnama, it was highly difficult to conclude that he tried to de-board from the off-side. He further pointed out that from the report prepared by the Railway Authorities, it cannot be observed that from which sides of the Railway, the deceased tried to alight. Thus, he prayed for setting aside the impugned judgment and award by granting compensation to the appellants/claimants. The learned counsel for the appellants/claimants also relied on the following judgments :-
(i) Decision of the Nagpur Bench in the case of Laxman Vs. Union of India (First Appeal No. 184 of 2022) decided on 04.10.2022
(ii) Hon’ble Apex Court in the case of Union of India Vs. Rina Devi Civil Appeal No. 4945 of 2018 (Special Leave Petition (Civil) No. 10223) Decided on 09.05.2018
(iii) Union of India Vs. Radha Yada AIR 2019 Supreme Court 1410
(iv) Judgement of this Bench in Keshav Poshetty Vantankar Vs. Union of India First Appeal No. 722 of 2005 decided on 20th July 2010.
On the contrary, the learned counsel for the respondent/Railway strongly supported the impugned judgment and reiterated the fact that the appellant died due to his own mistake, while getting down from the running train. He thus, prayed for dismissal of appeal.
Heard rival submissions and also perused the documents on record along with the record and proceeding of original claim application.
Admittedly, the learned Tribunal has dismissed the claim of appellants/claimants in respect of getting compensation on account of accidental death of Vijaysingh. It is not in dispute that the deceased Viajysingh, was travelling from Adilabad to Kinwat by Adilabad-Tirupati-Krishna Express bearing train No. 17406 with a valid ticket bearing No. 61011791. Further, it appears that, the learned Tribunal has refused to consider original appellant No.2 Sunita Indrapalsingh Rathod being the daughter of deceased Vaijaysingh. However, during the course of arguments, the learned counsel for respondent-Railway did not raise any serious objection in respect of the said relationship. In view of the same, it has to be concluded that, Sunita was the married daughter of the deceased Vijaysingh. Admittedly, she has died during the pendency of this petition and her children are brought on record as her legal representatives.
It is significant to note that as per the appellants, Vijaysingh, was standing in the door of compartment of train, as there was heavy rush. Further, according to them, Vijaysingh fell down from the train due to heavy jerk and came under the wheel and died due to severe injuries. As against this, the respondent/Railway is claiming that Vijaysingh was tried to de-board from off-side and that too from the running train and therefore, due to his own negligence, he died. The learned Tribunal appears to have accepted the contention of respondent-Railway, on the basis of documents on record and the admission given by the appellant No.1 Kalawati in her cross-examination. Therefore, it has to be seen that whether the appellants are not entitled for compensation on these aspects.
It is significant to note that while rejecting the claim, the learned Tribunal has relied on the admission of appellant No.1 in her cross-examination, wherein she admitted that her husband was trying to get down from off-side of the running train and in that process, he fell down and sustained injuries. Admittedly, such acceptance on the part of appellant No.1 Smt. Kalawati is there on record. However, it is important to note that she was not an eye witness to the accident, and when she had categorically stated in her chief examination that her husband fell down from the railway due to jerk, the aforesaid admission cannot be treated as significant one. After such admission, she has again denied that the said accident had taken place due to carelessness of her husband. Therefore, she being not an eye witness, no significance can be given to this admission.
Further, it appears that the learned Tribunal has relied on the statement of Station Master, Kinwat, recorded during the investigation by the police authorities. The said Station Master has stated that when he was standing before his office, one lady passenger already acquainted with him, had told him that one person was trying to de-board from running train and in that attempt, he fell down under the train. As such, this Station Master had not seen the actual incident and his statement based on hearsay evidence, cannot be taken as truth, for the fact that, the deceased was trying to get down from the running train, and that too from the off-side. Same is the case with the statement of Loco Pilot. In his statement, the said Loco Pilot had stated that he received message from the Station Master on walky-talky for not to start the train as one person was found lying under the railway, who allegedly tried to get down from the train in running condition. Thus, this Loco Pilot was also not having any personal knowledge in respect of the actual fall of the deceased. The Guard also stated like the aforesaid Loco Pilot and after going to spot of incident, he claims that the co-passenger of the deceased had told him that before stopping of the train on the platform, the deceased died while attempting to de-board from the running train. Therefore, the DRM’s report at Page No. A-18 to A-34 in respect of the investigation which is on record, wherein a conclusion is drawn that the deceased died while attempting to de-board from running train, is entirely based on hear-say evidence. As such, the said report cannot be used for determining the own negligence or fault of the deceased. Therefore, the finding of the learned Tribunal to that effect based on the said report is definitely erroneous.
Admittedly, under Section 124(A) of the Railway’s Act, 1989 there is liability cast upon the Railway Administration to pay compensation on account of an untoward incident. For better appreciation, Section 124 (A) is reproduced herein below :-
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 insainty;
(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 purpose of this section, “passenger’ includes -
(i) a railway servant or 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.
Further, under Section 123(c) of the Act, a definition of untoward incident is also provided and which is also reproduced herein below for quick reference.
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 (28 of 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, be 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.”
It is, thus, clear that the untoward incident covers, death or bodily injury of a person, in case of accidental falling of any passenger from a train carrying passengers. On going through the impugned judgment, the learned Tribunal has held that the injury sustained by the deceased was self-inflicted injury, as it took place due to his own negligence of alighting train from off-side of the platform. Though this Court, has already come to the conclusion that the finding of the learned Tribunal that the deceased died due to his own negligence, is erroneous, but even after assuming that the deceased came under the train, while attempting to de-board from off-side of the running train, then also the compensation can be granted to the dependents, if such act of falling down does not come under the criminal negligence. The concept of ‘self-inflicted injury’ or ‘criminal negligence’ has been discussed by the Honb’ble Apex Court in the case of Union of India Vs. Rina Devi (supra). Taking clue from the said judgment, this Court in the case of Laxman Vs. Union of India has also granted compensation to the deceased in the light of similar facts as that of this case.
So far as ‘self-inflicted injury’ is concerned, the Hon’ble Apex Court in the case of Union of India Vs. Rina Devi (supra), has made following observations :-
16.5 In Shyam Narayan (supra), same view was taken which is as follows :
(ii) I cannot agree with the arguments urged on behalf of the Appellants/applicants in the facts of the present case because there is a difference between an untoward incident and an act of criminal negligence. Whereas negligence will not disentitle grant of compensation under the Railways Act, however, once the negligence becomes a criminal negligence and self-inflicted injury then compensation cannot be granted. This is specifically provided in the first proviso to Section 124A of the Railways Act which provides that compensation will not be payable in case the death takes place on account of suicide or attempted suicide, self inflicted injury, bona fide passenger’s own criminal act or an act committed by the deceased in the state of intoxication or insanity.
16.6 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. Vs. Sunil Kumar MANU/SC/1562/2017 : 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 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.”
On going through the aforesaid observations, it is made clear that mere negligence will not disentitle grant of compensation under the Railway Act. However, it has to be shown that the said negligence must become a criminal negligence resulting into the ‘self-inflicted injury’. This Court in the case of Keshav Vs. Union of India has made following observations :
“7. A person in this situation cannot be accused of inflicting injuries to himself, because he takes a risk of getting down from a moving train but meets with an accident. An experienced train traveler looking to the speed of the train thinks that he would be able to get down from the train. He never intends to hurt himself while getting down from the train. Yet if due to negligence on his part he gets hurt it could be only an accidental injury and not intentional one. It is not as if the train is moving in high speed and he yet tries to get down form the train. It may (in some other case) happen that a train having limited stops is not scheduled to stop at a station where a passenger wants to get down. When he finds the train is approaching the station where he wants to get down, he would come to the door of the compartment. Unfortunately for him, the train even starts running parallel to a platform. But, unfortunately, again the train is not scheduled to stop at that station and it keeps moving in high speed. In such situation, if a person jumps out of the train to get down from the same and gets injured in the process, it could at the most be remotely arguable example of ‘self inflicted injury’. But I am not examining a case of that nature and I am avoiding to record finding on such case.
The circumstances, in which the appellant tried to get down from the train, were simply unfortunate. A boy of eight years probably unguarded by an adult tried to get down from the train while the train was still moving. It was a sheer accident and thus, it was be an “untoward incident”, as defined under Section 123(c) of the Act.”
From the aforesaid observations, this Court has distinguished the term negligence and criminal negligence leading to ‘self-inflicted injury’ and ultimately held that the appellants in that case a boy of eight years, who was trying to get down from the running train and came under the train, was a classic example of sheer accident and therefore, it was held that the same was untoward incident as defined under Section 123(c) of the Act.
In the instant case also the defense raised by the respondent-Railway that the deceased Vijaysingh died due to his own negligence, has come on the basis of hearsay evidence. The respondent did not examine any eye witness. who could state that the deceased was really trying to de-board from the running train, and that too from off-side. Further, even if it is assumed that the deceased had tried to de-bord from the running train, but in the light of observation of Hon’ble Apex Court as well as this Court in the aforesaid cases as mentioned above, such act of the deceased, needs to be considered as untoward incident, as there was no criminal negligence on the part of the deceased. Further, in view of the aforesaid observations, the injury sustained by the deceased cannot be termed as ‘self-inflicted injury’. It was only an unfortunate incident of accident covered under the term ‘untoward incident’ as contemplated in Section 123(c) of the Act. As such, interference in the impugned judgment is definitely required.
The learned counsel for the appellants submits that, during the pendency of this appeal, an amendment has been carried out in the compensation Rules and the amount of compensation in case of death has been increased from Rs. 4,00,000/- to Rs. 8,00,000/-. Admittedly, the said amendment is there in the Rules which is w.e.f. 1.1.2017. However, the learned counsel for the appellants fairly relied on the judgment of Hon’ble Apex Court in the case of Union of India Vs. Radha Yada (supra) wherein the Hon’ble Apex Court has dealt with the issue of granting of interest on the compensation of Rs. 8,00,000/- as per the amendment. In the said judgment, the Hon’ble Apex Court has made following observations :-
“ 8. When the matter was taken up, it was submitted on behalf of the appellant that grant of interest on the sum of Rs. 8,00,000/- was not consistent with the law laid down by this Court in the case of Rina Devi (AIR 2018 SC 2362). It was contended that despite said decision, in number of cases interest was being awarded on the revised amount of Rs 8,00,000/-. In the peculiar facts and circumstances, this Court did not find it appropriate to issue notice to the respondent but appointed Mr. Brijender Chahar, learned Senior Advocate as amicus curiae to assist the Court. It was made clear that the respondent shall be entitled to the benefit ordered by the High Court irrespective of the decision as regards question of law raised in the matter.
The issue raised in the matter does not really require any elaboration as in our view, the judgment of this Court in the case of Rina Devi (AIR 2018 SC 2362) is very clear. What this Court has laid down is that the amount of compensation payable on the date of accident with reasonable rate of interest shall first be calculated. If the amount so calculated is less than the amount prescribed as on the date of the award, the claimant would be entitled to higher of these two amounts. Therefore, if the liability had arisen before the amendment was brought in, the basic figure would be as per the Schedule as was in existence before the amendment and on such basic figure reasonable rate of interest would be calculated. If there be any difference between the amount so calculated and the amount prescribed in the Schedule as on the date of the award, the higher of two figures would be the measure of compensation. For instance, in case of a death in an accident which occurred before amendment, the basic figure would be Rs. 4,00,000/-. If, after applying reasonable rate of interest, the final figure were to be less than Rs. 8,00,000/- which was brought in by way of amendment, the claimant would be entitled to Rs. 8,00,000/-. If, however, the amount of original compensation with rate of interest were to exceed the sum of Rs. 8,00,000/- the compensation would be in terms of figure in excess of Rs. 8,00,000/-. The idea is to afford the benefit of the amendment, to the extent possible. Thus, according to us, the matter is crystal clear. The issue does not need any further clarification or elaboration.
Consequently, we must hold that the High Court was in error in awarding interest on the sum of Rs. 8 lakhs in the instant case. Where the accident had occurred before the amendment, it ought to have considered matter in the light of the principle laid down in Rani Devi (AIR 2018 SC 2362). We, therefore, set aside the impugned judgment and allow the appeals. However, the respondent, in any case, would not be affected in any manner and will be entitled to the sum awarded by the High Court.”
On going through the aforesaid clarification, it is sufficiently made clear that no interest is required to be granted on the aforesaid amount of compensation of Rs. 8,00,000/-.
This Court has already expressed indulgence in the impugned judgment by observing that the appellants are entitled for compensation. Under such circumstances, the appeal is hereby allowed and the impugned judgment of rejecting compensation to the appellants stands quashed and set aside. The respondent shall now pay Rs. 8,00,000/- (Rs. Eight Lakhs only) on account of compensation to the appellants in respect of death of deceased Vijaysingh, within three months.
On deposit of the said amount, amount of Rs. 6,00,000/-( Rupees Six Lakhs) be given to appellant No.1 Smt. Kalawati W/o Vijaysingh Thakur and Rs. 1,00,000/- each to appellant Nos. 2 and 3.
The appeal is accordingly disposed of.