Smt Kushalabai Kumbar Vs Union of India

THIS MFA FILED U/S 23(1) OF RAILWAY CLAIMS TRIBUNAL ACT, 1987 AGAINST THE ORDER DATED 11.09.2023 PASSED IN OA NO.( II U) SBC 0183/2017 ON THE FILE OF THE RAILWAY CLAIMS TRIBUNAL, BENGALURU, DISMISSING THE CLAIM APPLICATION FOR COMPENSATION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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ORAL JUDGMENT

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The appeal is filed by the claimants questioning the order dated 11.09.2023 passed by the Railway Claims Tribunal, Bengaluru Bench at Bengaluru in Claim Application No.OA (II U) SBC 0183 of 2017, thereby the claim application filed by the claimants is dismissed.

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It is the case of claimants that on 06.04.2016 the deceased had been to Tirupathi stating that he would be returning after 2 days, but the deceased did not turn up even after lapse of 20 days. Therefore, the claimants

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approached the Udgir Police and the Udgir Police had shown the photographs of unknown body, which was traced by the Gadag Railway Police and advised the claimants to approach the Gadag Railway Police for further details. When the claimants approached Gadag Railway Police, they have shown the clothes and articles of the deceased, which were seized from the body of the deceased and by seeing the said photographs, clothes and articles seized from the body of the deceased, the claimants have identified the body of the unknown person is that of Devidas Kumbar i.e., husband of the claimant No.1. Further based on the journey ticket and clothes recovered from the body of the deceased shows that the deceased was bonafide passenger and while travelling from Tirupathi to Udgir, due to jerk and jolt accidentally had fallen down from the moving train and sustained fatal injuries. Thus, the deceased succumbed to the injuries on the spot.

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As per the Railway Police, the dead body was

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found on 09.04.2016 8 feet away from the track enroute Hombal and Balaganur. Therefore, the claimants have filed claim application seeking compensation, but the same is dismissed on the reason that the deceased was not a bonafide passenger since as per the journey ticket recovered the deceased was travelling from Tirupathi to Udgir, but the body is found on the track of Hombal and Balaganur, which is not the route of Tirupathi and Udgir. Therefore, upon this discrepancy the Railway Tribunal suspected the death of deceased due to railway accident. Therefore, for these reasons dismissed the claim application.

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Heard arguments from both sides and perused the records.

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It is the case of claimants that on 06.04.2016 the deceased had been to Tirupathi stating that he would be returning after 2 days, but deceased had not returned

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to the home even after 20 days. Therefore, the claimants approached Udgir Police and the police at Udgir Police Station had shown the photographs of unknown body, which was traced by the Gadag Railway Police and advised the claimants to approach Gadag Railway Police for further details. When the claimant approached the Gadag Railway Police, they have shown the clothes of deceased and articles seized from the body of the deceased and by seeing the said photographs, clothes and articles seized from the body of the deceased, the claimants identified that it is the husband of claimant No.1 and father of claimant Nos.2 to 4. Also the said police handed over the journey ticket, which is from Tirupathi to Udgir. Therefore, claimants filed a claim application seeking compensation, which came to be dismissed by the Tribunal.

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Upon considering the evidence on record, as per DRM Report - Ex.R-1 the dead body was found on 09.04.2016 on the track enroute Hombal and Balaganur. In the DRM Report after making enquiry, it is concluded

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that the victim passenger had travelled from Tirupathi to Udgir via RU, GTL, GDG, HBL and BL with journey ticket No.C-85399453 dated 08.04.2016 - Tirupathi to Udgir route via RU, GTL, RC and VKB. Therefore, it is the DRM report that the deceased had not travelled in a correct route as per the ticket and as such, suspected the journey as per the ticket. The Tribunal while appreciating this evidence had only mentioned in the order that the alleged ticket is for Tirupathi to Udgir via RU, GTL, RC and VKB, but the DRM report says that the deceased travelled with the ticket Tirupathi – Udgir via RU, GTL, GDG, HBL and BL. Upon considering this enroute and considering where the dead body is found on the track between Hombal and Balaganur, it is proved that the journey ticket is from Triupathi - Udgir via Gadag and Hubli and the track where the body of deceased was found is on the enroute approaching Gadag and Hubli. Therefore, from the DRM report it is proved that the deceased had purchased journey ticket and had travelled, perhaps may be on

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different routes, but that cannot always be suspected for journey made by the deceased. When the ticket was recovered from the body of the deceased, it is proved that the deceased is the bonafide passenger. The journey ticket also shows the enroute to Gadag and Hubli. Therefore, all these evidence and circumstances prove the fact that the deceased having purchased the journey ticket and had travelled and unfortunately, he died in the railway accident as above stated.

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The dead body was found on 09.04.2016 and inquest panchanama was conducted on 10.04.2016 and post-mortem was conducted on 13.04.2016. The PM report proves the fact that the dead body was brought for post mortem on 13.04.2016. Therefore, all these are found to be in a natural course during conducting enquiry. As such, there is no suspicion involved in the case that the death of the deceased is not an untoward incident. Furthermore, as above discussed, journey ticket was recovered from the body of the deceased. It is also not

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disputed by the respondent/Railway Authorities that the

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claimants and deceased are residents of Udgir Taluk.

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Therefore, considering all these evidence on its preponderance of probabilities, it is proved that the deceased was travelling from Tirupathi to Udgir via Gadag and Hubli and met with the accident on the track between Hombal and Balaganur and also journey ticket was found.

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Hence, it is proved that the deceased was bonafide passenger and died in an untoward incident.

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9. The Hon'ble Apex Court in the case of DOLI RANI SAHA VS. UNION OF INDIA¹ in paragraph No.13

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has held as under:

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"13. From the recapitulation of the various judicial pronouncements leading to the present appeal, it can be seen that the primary issue is whether the deceased was travelling on the train in question. In Rina Deva (supra), a two-Judge Bench of this Court considered the question of the party on which the burden of proof will lie in cases where the body of the deceased is found on railway premises. This Court held that the initial burden would be on the claimant, which could be discharged by filing an affidavit of the relevant facts. Once the claimant did so, the burden would then shift to the Railways. Significantly, it also held that the mere absence of a

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1 (2024) 9 SCC 656

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ticket would not negate the claim that the deceased was a bona fide passenger. The relevant extract from the ruling of the Court is reproduced below:

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"29. We thus hold that mere presence of a body on the railway premises will not be conclusive to hold that the 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."

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The judgment of this Court in the case of

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MAHABOOB SAB & ANOTHER VS. UNION OF INDIA²

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in paragraphs No.12 & 17 has held as under:

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"12. Per contra, Railways are claiming that it is not an untoward incident, but it is self-inflicted injury as contemplated under Section 124(a) Proviso (b). In view of these rival contentions, it would be necessary to examine the contentions raised by claimants before Tribunal in claim petition and evidence tendered by claimants, which is to the following effect: That the petitioners No.1 and 2 are the father and mother of the deceased Shahnawaz hereinafter called the deceased. The deceased was travelling Train No.1014 as a bona fide passenger. The deceased fell of from the train at Yelahanka Railway station, due to the huge jerk in the train.

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22010 SCC OnLine Kar 5098

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The deceased had suffered multiple injuries. The deceased was taken to Victoria Hospital for treatment and admitted as indoor patient. The duty doctors attended the deceased and offered all possible treatment to save the life of deceased. But the deceased succumbed to the injuries on 06.09.2003.

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17. The fact that Railways Act is a beneficial piece of legislation cannot be lost sight of by this Court and it should receive a liberal and wider interpretation and purposeful construction of an enactment is one, which gives effect of legislative intent. Particularly when such beneficial legislation is called in question, it should receive a liberal interpretation and applying a strained interpretation would defeat the legislative purpose for which enactment is brought about."

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11. In the case of UNION OF INDIA VS. RINA

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DEVA³ , the Hon'ble Apex Court has held as under:

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"Re: (ii) Application of Principle of Strict Liability - Concept of Self Inflicted Injury

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16.1. From the judgments cited at the Bar we do not see any conflict on the applicability of the principle of strict liability. Sections 124 and Section 124A provide that compensation is payable whether or not there has been wrongful act, neglect or fault on the part of the railway administration in the case of an accident or in the case of an 'untoward incident'. Only exceptions are those provided under proviso to Section 124A. In Prabhakaran Vijaya Kumar (AIR 2009 SC (Supp) 383) (supra) it was held that Section 124A lays down strict liability or no fault liability in case of railway accidents. Where principle of strict liability applies, proof of negligence is not

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3 AIR 2018 SC 2362

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required. This principle has been reiterated in Jameela (AIR 2010 SC 3705) (supra).

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16.2. Coming to the proviso to Section 124A to the effect that no compensation is payable if passenger dies or suffers injury due to the situations mentioned therein, there is no difficulty as regards suicide or attempted suicide in which case no compensation may be payable. Conflict of opinions in High Courts has arisen on understanding the expression 'self inflicted injury' in the proviso. In some decisions it has been held that injury or death because of negligence of the victim was at par with self inflicted injury. We may refer to the decisions of High Courts of Kerala in Joseph PT (AIR 2014 SC Ker 12) (supra), Bombay in Pushpa (supra) and Delhi in Shayam Narayan (supra) on this point.

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16.3. In Joseph PT (AIR 2014 Ker 12) (supra), the victim received injuries in the course of entering a train which started moving. Question was whether his claim that he had suffered injuries in an 'untoward incident' as defined under Section 123(c) could be upheld or whether he was covered by proviso to Section 124A clause (b). The High Court held that while in the case of suicide or attempt to commit suicide, intentional act is essential. Since the concept of 'self inflicted injury' is distinct from an attempted suicide, such intention is not required and even without such intention if a person acts negligently, injuries suffered in such an accident will amount to 'self inflicted injury'. Relevant observations are:

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"Therefore, the two limbs of the Proviso should be construed to have two different objectives to be achieved. We can understand the meaning of the term "selfinflicted injury" not only from the sources provided by the dictionaries, but also from the context in which it is used in the statute. The term "self-inflicted injury" used in the statute can be deduced as one which a person suffers on account of one's own action, which is something more than a rash

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or negligent act. But it shall not be an intentional act of attempted suicide. While there may be cases where there is intention to inflict oneself with injury amounting to self-inflicted injury, which falls short of an attempt to commit suicide, there can also be cases where, irrespective of intention, a person may act with total recklessness, in that, he may throw all norms of caution to the wind and regardless to his age, circumstances, etc. act to his detriment. Facts of this case show that the appellant attempted to board a moving train from the off side unmindful of his age and fully aware of the positional disadvantageous and dangers of boarding a train from a level lower than the footboard of the train. It is common knowledge that the footboard and handrails at the doors of the compartment are designed to suit the convenience of the passengers for boarding from and alighting to the platform. And at the same time, when a person is trying to board the train from the non-platform side, he will be standing on the heap of rubbles kept beneath the track and that too in a lower level. Further more, he will have to stretch himself to catch the handrails and struggle to climb up through the footboard hanging beneath the bogie. The probability of danger is increased in arithmetic progression when the train is moving. Visualising all these things in mind, it can only be held that the act of the appellant was the height of carelessness, imprudence and foolhardiness. It is indisputable that the purpose of Section 124A of the Act is to provide a speedy remedy to an injured passenger or to the dependants of a deceased passenger involved in an untoward incident. Section 124A of the Act provides for compensation to a passenger or his dependants who suffers injury or death, as the case may be, in an untoward incident even where the untoward incident is not the consequence of any wrongful act, neglect or

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default on the part of Railway Administration. to this extent, it can be said to be a no-fault liability. Even though the provisions relating to payment of compensation in the Act can be said to be a piece a beneficial legislation, it cannot be stretched too much to reward a person who acts callously, unwisely or imprudently. There is no provision of law brought to our notice permitting the passengers to entrain from the non-platform side of the railway track. However, the counsel for the respondent did not show any provision of law prohibiting the same. The question whether an act by which a passenger sustains injury while boarding a train through the off side, is a selfinflicted injury or not depends on the facts of each case. Merely because a person suffered injury in the process of getting into the train through the off side, it may not be sufficient to term it as a selfinflicted injury, unless the facts and circumstances show that his act was totally imprudent, irrational, callous and unmindful of the consequences. All the facts and circumstances established in this case would show that the act of the appellant was with full knowledge of the imminent possibility of dangering his life or limb and therefore, it squarely comes within the term "self-inflicted injury" defined in Section 124A Proviso (b) of the Act."

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16.4. In Pushpa (supra) a hawker died in the course of boarding a train. It was held that he was not entitled to compensation as it was a case of 'self inflicted injury'. The relevant observations are:

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"Such an attempt by a hawker has been viewed by the trial Court as something amounting to criminal negligence on his part and also an effort to inflict injuries to himself. The trial Court reasoned that if the deceased had to sell his goods by boarding a train, he should have ensured to do so only when it was quite safe for him to get on to the train

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or otherwise he could have avoided catching the train and waited for another train to come. It also hinted that there was absolutely no compulsion or hurry for the deceased in the present case to make an attempt to somehow or the other board the train while it was gathering speed."

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16.5. In Shyam Narayan (2017 AAC 1833 (Del.)(supra), same view was taken which is as follows:

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"6(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 124-A 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."

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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. v. Sunil Kumar 2017 (13) SCALE 652 : (AIR 2017 SC 5710) 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

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that death or injury in the course of boarding or deboarding 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."

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As per Section 124A of the Railways Act, 1989,

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the compensation is to be payable on the principle of strict liability. Therefore, the claimants have proved their claim as discussed above and are entitled for compensation from the respondent/Railway Authorities. Therefore, the order passed by the Railway Claims Tribunal is liable to be set aside.

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The deceased died in the accident on 09.04.2016. Therefore, compensation of Rs.4,00,000/- is awarded along with interest at the rate of 8% p.a., from the date of petition till the date of realization.

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The Hon’ble Supreme Court in the case of

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KAMUKAYI AND OTHERS vs. UNION OF INDIA AND

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OTHERS⁴ has observed at paragraph No.22 as follows:

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4 (2023) 19 SCC 116

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“22 . The said judgment was further explained by this Court in Radha Yadav⁵ , relevant para 11 is reproduced as thus:

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“11. The issue raised in the matter does not really require any elaboration as in our view, the judgment of this Court in Rina Devi⁶ 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.”

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5 Union of India V. Radha Yadav, (2019) 3 SCC 410

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6 Union of India V. Rina Devi, (2019) 3 SCC 572

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Therefore, as per this order, if the

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compensation amount awarded with interest exceeds a sum of Rs.8,00,000/-, then the compensation would be in terms of figure excess of Rs.8,00,000/-. Therefore, in the present case also, the accident occurred is before 01.01.2017. Hence, by granting award of Rs.4,00,000/with interest at the rate of 8% p.a., from the date of petition till realization, if it exceeds Rs.8,00,000/-, then the said exceeded amount shall be given to the appellants/claimants. If the final figure comes less than Rs.8,00,000/-, then the appellants/claimants are entitled to Rs.8,00,000/-.

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Accordingly, I proceed to pass the following

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ORDER

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(i) The appeal is allowed .

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(ii) The impugned judgment order dated 11.09.2023 passed by the Railway Claims Tribunal (Bengaluru Bench at Bengaluru) in Claim Application No.OA (II U) SBC 0183 of 2017, is hereby set aside.

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(iii) The claimants are entitled to compensation of Rs.4,00,000/- along with interest at the rate of 8% p.a., from the date of petition till the date of realization.

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(iv) It is also made clear that after applying the rate of interest, if the final figure is less than Rs.8,00,000/-, then the claimant is entitled to Rs.8,00,000/-. Therefore, in the present case also, compensation of Rs.4,00,000/with interest at the rate of 8% p.a., from the date of petition till the date of realization is awarded to the claimants and if this figure comes less than Rs.8,00,000/-, then the appellants/claimants are entitled to a maximum compensation of Rs.8,00,000/-.

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(v) The wife is entitled for 40% of the compensation and three children are entitled for 20% of compensation each.

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(vi) No order as to costs.

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SD/(HANCHATE SANJEEVKUMAR) JUDGE

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DR

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List No.: 1 Sl No.: 46

Smt Kushalabai Kumbar v. Union of India

Case brief

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Smt Kushalabai Kumbar v. Union of India

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