Shanti Devi And Ors vs Union of India

Heard, learned counsel for the appellants, Mr. Shashi Kant Thakur and learned counsel for the respondent, Mr. Gautam Rakesh.

The claimants namely, Shanti Devi, Manoj Ray, Biru Ray and Balmukund Ray are the appellants before this Court. Their claim application vide Claim

Case No. OA(IIU)/RNC/74/2017 has been dismissed vide order dated 26.07.2018 by learned Member (Technical), Railway Claims Tribunal, Ranchi

Bench, Ranchi holding that victim deceased Shyam Lal Ray was not a bonafide passenger, though the learned Tribunal has mentioned in this regard

the judgment passed by the Hon'ble Apex Court in the case of Union of India Vs. Rina Devi passed in Civil Appeal No.4945 of 2018 as reported in

(2019) 3 SCC 572 (Paragraph-29).

Learned counsel for the appellants has submitted that the deceased was a bonafide passenger which shall be apparent from perusal of the evidence of

A.W.-1, Shanti Devi particularly paragraphs- 3 and 4, which is reproduced herein below:

3.

-25.08.2016 ;

After cross-examination suggestion was given by Railway, which are as follows:-

- ? -

Similarly A.W.-3, Balmukund Ray at paragraph-3 has stated that - 3.

In the cross-examination, the railway never asked any question with regard to the ticket rather asked question that police

has stated in the final report that your deceased father died due to his own negligence while crossing the Railway line, what can you say about this ?

Answer given by the witness is - Sir the story given by the police in the final report is false.

Learned counsel for the appellants has submitted that in view of the judgment passed by the Hon'ble Apex Court in the case of Rina Devi (Supra)

(Paragraph-29), the onus was upon the railway to prove that deceased, Shyam Lal Ray, was not a bonafide passenger. Further, the incident was

under Section 123 (c) (2) of the Railways Act in view of the judgment passed by the Hon'ble Apex Court in the case of Union of India Vs.

Prabhakaran Vijaya Kumar reported in (2008) 9 SCC 527, as such, appellants are entitled for compensation amount of Rs. 8 lacs as the application

has been filed on 18.05.2017 and the new amended Rules i.e. the Railway Accidents and Untoward Incidents (Compensation) Rules, 2016 came into

force on 01.01.2017.

Learned counsel for the Railways, Mr. Gautam Rakesh has referred the counter affidavit and has submitted that the claim Tribunal has rightly

rejected the claim application of the claimants.

Learned counsel for the railway has submitted that Exhibit- R-1 to R.-11 are report of the Divisional Manager along with other documents in view of

Rule 12 of the Railway Passengers (Manner of Investigation of Untoward Incidents) Rules, 2003, which is quoted hereunder:-

Communication of order - Final orders passed on the report by the Divisional Railway Manager shall be communicated to the Station

Superintendent who shall maintain the records and make necessary entries in the Station Diary to this effect.

Learned counsel for the Railway has thus submitted that in view of Section 74 (1)(iii) of the Evidence Act, documents forming the acts, or records of

the acts of Public officers, legislative, judicial and executive of any part of India or of the Commonwealth, or of a foreign country, is a public

document.

Learned counsel for the Railway has thus submitted that the learned Tribunal has rightly repudiated the claim of the appellants relying upon the public

document holding that the deceased Shyam Lal Ray was not a bonafide passenger and he died in an accident, which falls under exception (a) to (e) of

Section 124A of the Railways Act, 1989, as such, this Court may not interfere with the same.

Heard, learned counsel for the appellants and learned counsel for the Railway. From perusal of the Lower Court Records and the evidence of A.W.-

1- Shanti Devi and A.W.3- Balmukund Ray, this Court has found the contention of learned counsel for the appellants to be correct.

This Court has perused the Exhibit-R/1 to R/11 from the LCR, none of the documents have been issued by Divisional Railway Manager so as to

consider the same to be a public document, as such the submission of learned counsel for the respondent is rejected.

Under the aforesaid circumstances, in view of evidence of A.W.-1 Shanti Devi as referred above and considering the judgment passed by the Hon'ble

Apex Court in the case of Union of India Vs. Rina Devi (supra), this Court holds that the deceased Shyam Lal Ray was a bonafide passenger as

comes under Section 2(29) of the Railways Act and railway has also not brought anything on record to disbelieve the same. Paragraph-29 of the said

judgment is reproduced hereinbelow:-

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) So far the incident, which has been wrongly considered by the learned Tribunal under exception (a) to (e) of Section 124A of the

Railways Act, this Court perused the judgment passed by the Hon'ble Apex Court in the case of Union of India Vs. Prabhakaran Vijaya Kumar

(supra). Paragraphs-14 to 17 and 22 to 24 are quoted hereunder:-

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.

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 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 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)

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.

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.

Strict liability focuses on the nature of the defendants' activity rather than, as in negligence, the way in which it is carried on. 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"".

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.

The basis of the doctrine of strict liability is two fold (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.

Further, in view of evidence of A.W.-3 Balmukund Ray particularly the suggestion made during cross-examination of A.W.3, this Court held that the

incident comes under the preview of Section 123 (c) (2) of the Railways Act.

So far the compensation is concerned, this Court has perused the judgment passed by the Hon'ble Apex Court in the case of Rathi Menon Vs. Union

of India reported in (2001) 3 SCC 714 (paragraphs-29 and30), Thazhathe Purayil Sarabi and Others Vs. Union of India and Anr. reported in (2009) 7

SCC 372 (paragraph-36 to 40) as well as the judgment passed by the Hon'ble Apex Court in the case of Union of India Vs. Radha Yadav reported in

(2019) 3 SCC 410 (paragraph-11).

This Court allowed the Miscellaneous Appeal by setting aside the impugned judgment dated 26.07.2018 passed by Member (Technical), Railway

Claims Tribunal, Ranchi Bench with a direction to the Railways to indemnify Rs. 4 lacs with simple interest @ 9% from the date of filing of claim

application till the date of actual payment to the claimants.

Accordingly, the instant Miscellaneous Appeal is hereby allowed. The Lower Court Records be sent down forthwith.