Mr Nanjundaswamy Vs the Union of India

THIS MFA FILED U/S.23(1) OF THE RAILWAY CLAIMS TRIBUNAL ACT, AGAINST THE JUDGMENT AND ORDER DT.30.11.2018 PASSED ON OA II U 75/2017 ON THE FILE OF THE RAILWAY CLAIMS TRIBUNAL, BENGALURU BENCH, DISMISSING THE CLAIM APPLICATION IN THE LIGHT OF AFORESAID DISCUSSION AND FACTS AVAILABLE ON THE RECORD.

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THIS APPEAL, COMING ON FOR HEARING, 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 appellants/claimants

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challenging the order dated 30.11.2018 passed in Claim Application No.O.A.II U 75/2017 by the Railway Claims Tribunal, Bengaluru, thereby, the claim petition filed by the claimants is dismissed on the reason that the death of the deceased cannot be said to be an untoward incident as the incident was happened while crossing the railway track.

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HC-KAR

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It is the case of the claimants that the deceased

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was the resident of Chandapura, Bangalore. On 01.11.2015 the deceased in order to go to

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Anjaneyaswamy Temple at Muthampatti, Tamilnadu, went to Heelaligi Railway Station, purchased a journey ticket to travel from Heelaligi to Muthampatti by Bangalore – Karaikal Passenger Train.

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It is stated that Heelaligi Railway Station is a small railway station and there is no provision of foot over bridge or under bridge in the said Railway Station facilitating the passengers to reach from one platform to another platform, thereby forcing the passengers to cross over railway tracks to reach platform No.2 from platform No.1. Under these circumstances, the deceased after purchasing journey ticket while going to platform No.2 from platform No.1 to board the train was hit by the said train, causing fatal injuries and succumbed to the injury on the spot. The claimants were the legal heirs of the deceased, but their claim petition was dismissed on the

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reason that since the deceased was in the process of crossing the railway track and hence, it is not an untoward incident, thus, dismissed the claim petition.

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Learned counsel for the appellants/claimants submitted that Heelaligi Railway Station is a small railway station and there is no foot over bridge or under bridge to cross from one platform to another platform and therefore, the deceased after purchasing journey ticket was compelled to go to platform No.2, in which platform the train was coming and thus, the deceased was compelled to cross over the railway track and the accident happened. Therefore, submitted that the deceased was the bonafide passenger as she has purchased the journey ticket, but died in the said untoward incident.

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Learned counsel for the appellants/claimants

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places reliance on the below mentioned decisions, which are as under:

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(i) RAKESH SAINI AND OTHERS VS. UNION OF INDIA AND ANOTHER – 2005 ACJ 2148 (RAKESH SAINI’s case)

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(ii) UNION OF INDIA VS. AHALYA PRUSTI AND ANOTHER – 2010 ACJ 928 (AHALYA PRUSTI’s case)

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(iii) KALANDI CHARAN SAHOO AND ANOTHER VS. GENERAL MANAGER, SOUTH-EAST CENTRAL RAILWAY – 2018 ACJ 1460 (KALANDI CHARAN SAHOO’s case)

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(iv) UNION OF INDIA VS. PRABHAKARAN VIJAYA KUMAR & OTHERS – 2008 AIR SCW 4165 (PRABHAKARAN VIJAYA KUMAR’s case)

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On the other hand, learned counsel for the

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respondent-Union of India submitted that the deceased while crossing the railway track met with an accident and died in the said accident, but not when the deceased was boarding the train, accident has occurred, therefore, justified the order passed by the Tribunal. Hence, prays to dismiss the appeal.

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HC-KAR

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Upon hearing the arguments from the learned

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counsel for both the parties and perusing the materials on

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record, the following points arise for consideration:

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(i) Whether, under the facts and circumstances involved in the case, the claimants prove that the deceased died in an untoward incident while she was the bonafide passenger?

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(ii) Whether the order of the Tribunal requires interference or not?

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The evidence on record proves the fact that the deceased has purchased the journey ticket. Ex.A.5 is the journey ticket recovered from the body of the deceased. Therefore, it is proved that the deceased was the bonafide passenger as having purchased the journey ticket was intending to board the train, but the incident occurred and died. Therefore, it is proved that the deceased was the bonafide passenger.

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The DRM report also proves the fact that the

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deceased died due to railway accident on the railway track in the platform. The evidence on record proves the fact

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that there is no foot over bridge or under bridge in Heelaligi Railway Station. Therefore, the passengers are compelled to cross the railway track moving from platform No.2 to platform No.1. Under these circumstances, the accident has occurred. Therefore, the question is whether this could be considered as an untoward incident or not?

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In the very same under the similar set of facts and circumstances, the Division Bench of Delhi High Court in RAKESH SAINI ’s case (stated supra) has observed at paragraph Nos.13, 14, 15 and 17 as follows:

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“13. Undisputedly no over-head bridge or sub-way to approach the train at Old Azadpur Railway Station for boarding the train coming from New Delhi side and going towards Ambala side was provided. Thus the passengers for boarding the said train had to cross the Railway Station. It is itself hazardous and would amount to negligence on the part of the respondents. It defeats the contention of the Court as to how the respondents could act in such a negligence by exposing the passengers to a grave risk in forcing them to cross the Railway track meant for incoming trains from Ambala side for boarding the trains which were to go towards Am bala. This fact alone is sufficient to fasten the respondents with the liability. There has to be safe passage in the form of over-bridge or sub way for reaching the other side and not by means of crossing the Railway track which itself is dangerous. The Apex Court in the case of M.P. Electricity Board v. Shail Kumari & Ors. (2002) 2 SCC 162 made fol lowing pertinent observations fastening the respondents with ‘strict liability’:

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“Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known in law as ‘Strict Liability’. It differs from the liability which arises on account of the negligence or fault in this way i.e. the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defendant did all that which could be done for avoiding the harm, he cannot be held liable when the action is based on any negligence attributed. But, such consideration is not relevant in cases of strict liability where the defendant is held liable, irrespective of whether he could have avoided the particular harm by taking precautions”.

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14. It is because the course of action required to be taken by the passengers boarding the train coming from New Delhi Railway Station and going towards Ambala side would depend on this crucial fact. If such a platform was in existence then passengers are supposed to wait on this platform for boarding the train going towards Ambala and what is suggested by the trial Court may be correct. On the other hand if there was no such platform then the only possible course to catch such a train was to cross railway track meant for incoming train from Ambala side and board the train towards Ambala side after crossing the track, particularly when admittedly there is no overbridge or subway for reaching the other side.

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15. That apart the other question to be determined is as to whether the respondents had provided any platform for the passengers for boarding trains at

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Old Azadpur Railway Station going towards Ambala Side.

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17. In their book of ‘On Negligence’ celebrated authors Charlesworth & Percy have defined ‘negligence’ in the following manner (7th Edition, p. 15):— “Negligence is a tort which involves a person's breach of duty, that is imposed upon him, to take care, resulting in damage to the complainant”. The essential components of the modern tort of negligence propounded by Percy and Charlesworth are as follows:—

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(a) the existence of a duty to take care, which is owed by the defendant to the complainant;

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(b) the failure to attain that statement of care, prescribed by the law, thereby committing a breach of such duty; and

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(c) damage which is both causally connected with such breach and recognised by the law, has been occasioned to the complainant.

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The law imposes a duty on everyone to confirm to certain stndards of conduct for protection of others. The need for existence of due care is illustrated by Lord Wright in well known judgment Grant Versus Australian Knitting Mills Ltd. reported in (1936) AC 85 (103) in the following words:—

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“All that is necessary as a step to establish the tort of actionable negligence is to define the precise relationship from which the duty to take care to be deduced. It is, however, essential in English law that the duty should be established, the mere fact that a man is injured by another's act gives in itself no cause of action, if the act is deliberate, the party injured will have no claim in law even though the injury is intentional, so long as the other party is merely exercising a legal right; if the act involves lack of due care, again no case of actionable negligence will arise unless the duty to be careful exists.”

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The word ‘duty’ connotes the relationship between one party and another, imposing on the one an obligation for the benefit of that other to take reasonable care in the first instance. It was undoubtedly the duty of the respondents to provide

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for proper platform as well as over-bridge/subway to conform to standard of conduct for projection of passengers, having failed to discharge his duty respondents acted negligently.”

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Further the High Court of Orissa in AHALYA PRUSTI ’s case (stated supra) has observed at paragraph Nos.10, 11 and 12 as follows:

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“10. Coming to the present facts of the case it is undisputed fact that the investigating authority had seized the body of the deceased from/nearby railway track. It was also found in the evidence on record that he was dashed by the portion of the train. It was urged from the side of the Railways that he was actually crossing the track from one platform to the other in a hasty manner wrongly thinking that the train that arrived in the platform is the one that he is to board; it is thus while crossing the track the accident took place. Thus, total negligence on the deceased for the said accident it was attributed.

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11. What was excluded in Section 124-A from getting compensation was (a) suicide or attempted suicide by the deceased; (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.

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12. It was argued on the side of the claimants that there was factually no negligence on the part of the deceased and legally the excluded act on the part of the deceased debarring him from getting compensation is only other such acts enumerated above in the provision of Section 124-A and not any other act as alleged by the Railways.”

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Further the Hon’ble Supreme Court in the case

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of PRABHAKARAN VIJAYA KUMAR ’s case (stated supra) has observed at paragraph Nos.14, 16, 17, 41 and 45 as follows:

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“14. 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 traveling 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 traveling 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.

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16. The accident in which Smt. Abja died is clearly not covered by the proviso to 124A. The accident did not occur because of any of the reasons mentioned in clauses (a) to (e) of the proviso to Section 124A. Hence, in our opinion, the present case is clearly covered by the main body of Section 124A of the Railways Act, and not its proviso.

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17. Section 124A lays down strict liability or no fault liability in case of railway accidents. Hence, if a case comes within the purview of Section 124A it is wholly irrelevant as to who was at fault.

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41. It is true that attempts to apply the principle of Rylands vs. Fletcher (supra) against public bodies have not on the whole succeeded vide

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Administrative Law by P.P. Craig, 2nd Edn. p. 446, mainly because of the idea that a body which acts not for its own profit but for the benefit of the community should not be liable. However, in our opinion, this idea is based on a misconception. Strict liability has no element of moral censure. It is because such public bodies benefit the community that it is unfair to leave the result of a nonnegligent accident to lie fortuitously on a particular individual rather than to spread it among the community generally.

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45. Thus, it is the duty of the State under our Constitution to function as a Welfare State, and look after the welfare of all its citizens.”

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Section 123(c) of the Railways Act, 1989,

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defines “untoward incident” . Section 124 deals with “Extent of Liability ”. Section 124A deals with how to make compensation on account of untoward incident. Section 124A lays down obligation on the part of the Railways on strict liability or no fault liability in case of railway accident. Therefore, when the case is considered upon the strict liability or no fault liability, then to find out as to who is on fault is immaterial. Therefore, where there is an untoward incident, the Railway Authorities are liable to pay compensation.

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HC-KAR

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Considering this principle applying to the present facts and circumstances, admittedly, there is no over bridge or under bridge to move from one platform to another platform. Therefore, the passengers are compelled to move from one platform to another platform to cross the railway track. Non-providing the over bridge or under bridge by the Railways and making the passengers compulsorily to cross the track and if any untoward incident occurs, then it is coming within the principle of strict liability or no fault liability where there is obligation on the part of the Railway Authorities and if discharging the said obligation and under the said circumstances, if any untoward incident occurs, then the Railway Authorities are liable to pay compensation. Therefore, under these circumstances, the present case also comes within the definition of untoward incident. The definition untoward incident is exhaustive one. Therefore, the Railways are responsible to pay the compensation.

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HC-KAR

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When under these circumstances, the

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passengers are crossing the railway track, and then the theory of strict liability is applicable. The deceased found with journey ticket and admittedly, the incoming train was intended to go to platform No.2 enabling the passengers

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to board the train and railway counter is at the entrance of the railway station abutting to platform No.1. Therefore, the deceased after having purchased the journey ticket was rushing towards platform No.2 as she was compelled to do so. Under these circumstances, an untoward incident was happened for which the respondent is only responsible. Therefore, the claimants are entitled for compensation and in this regard, the observation of the trial Court is not correct. Accordingly, I answer point Nos.1 and 2 in affirmative . Therefore, the impugned order is liable to be set aside.

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The deceased died in the accident on 01.11.2015. Therefore, compensation of Rs.4,00,000/- is

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awarded along with interest at the rate of 8% p.a., from

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the date of petition till the date of realization.

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The Hon’ble Supreme Court in the case of Kamukayi and Others Vs. Union of India and Others¹ ,

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wherein at paragraph No.23 it is held as under:

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“23. Accordingly and as per above discussion we allow this appeal and set aside the impugned judgment dated 26.03.2021 passed by the High Court and also the Claims Tribunal dated 29.06.2017. Consequently, claim application is allowed. The appellants are held entitled for compensation to the tune of Rs.4,00,000/along with interest @ 7% p.a. from the date of filing the claim application till its realisation. It is made clear that after applying the rate of interest, if the final figure is less than Rs.8,00,000/-, then appellants shall be entitled to Rs.8,00,000/. The amount of compensation be satisfied by the respondents within a period of eight weeks. No order as to costs.”

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The Hon’ble Supreme Court has held that in

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case where the accident occurred in the year 2003 and awarded compensation of Rs.4,00,000/along with

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1 (2023) 6 SCR 329

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interest from the date of petition till the date of realization

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and also it is made clear that after applying the rate of interest, if the final figure is less than Rs.8,00,000/-, then the claimants are 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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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 order dated 30.11.2018 passed in Claim Application No.O.A.II U 75/2017 by the Railway Claims Tribunal, Bengaluru, is hereby set aside.

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(iii) The claimants being husband, daughter and son of the deceased are entitled to compensation of Rs.4,00,000/- along with interest at the rate of 8% p.a., from the date

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of petition till the date of realization. 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 claimants are 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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