Allowed

Thungapindi , Thungapalli Narsaiah v. The Union of India

Telangana HC4 Sept 2023CMA/1162/2018

Case brief

AI extract

What is this about?

This court allowed an appeal against a Railway Claims Tribunal order dismissing a compensation claim of Rs. 4 lakhs for the death of a passenger. The court held that falling while boarding a train is an untoward incident and reversed the Tribunal's finding, awarding Rs. 9 lakhs.

What did the court decide?

Compensation of Rs. 9,00,000 awarded with interest; Railway to deposit amount before Tribunal within two months.

Thungapindi , Thungapalli Narsaiah Vs The… — Pension and Retirement Benefits | Telangana HC (2023)

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IN THE HIGH COURT FOR^{THE STATE OF TELANGANA} AT HYDERABAD

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MONDAY,THE FOURTH DAY^{OF SEPTEMBER} TWO THOUSAND AND TWENTY^THREE

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PRESENT

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THE HONOURABLE SMT^{JUSTICE M.G.PRIYADARSINI}

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CIVIL MISCEL LANEOUS^{APPEALNO:1162 0F 2018}

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AppealUnderSection23ofRailwaysClaimsTribunalActagainstJudgement in O.A.(llU) No.173 of 2013, dated^{04.10.2018on the file of the RailwayClaims} Tribunal, Secunderabad Bench.

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Between:

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THUNGAPINDI @ THUNGAPALLI^{NARSAIAH,s/o T. Venkataiah' aged} about 65^years,o-cc Coolie^{r/o H.No.4-134' Bhojannapet, Peddapalli, District} Peddapalli.

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THUNGAPINDI @ THUNGAPALLI^{ODEIVMA, W/o T. Narsaiah, aged-about} 51 years, Occ Eoolie. r/o^{H.No.4-'134, Bhojannapet,Peddapalli, District} Peddapalli.

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...Appellants/Applicants

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AND

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The Union of lndia, rep by its General^{Manager, South Central Railway, Rail} Nilayam, at Secunderabad.

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...RespondenURespondent

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Counsel for the Appellants:^{SRI S. CHANDRASEKHAR}

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Counsel for the Respondent:^{SMT G RUKMINI (SCFOR CENTRAL GOVT)}

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The Court made the following^Judgement:

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THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI CIVIL MISCELLANEOUS APPEAL No. Ll62 of 2Ot8 JUDGMENT:

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This Civil Misct:llancor-rs Application is filcd b1, the applicanrs under Section 23 of the Ra rvay craims Tribunal Act, 1978lfor brevity hereinafter refcrred to as the ActJ aggrievcd by Lhe ordcr dated O4.1O.2Olg in OA II (U) No. I73 ol 2013 passed bv thc Railn,a-r, Claims 'lribunal, Sccunderabad Bench, aI Sccunderabad, wherein the claim petition trled by the applicants claiming compcnsaLion ol Iis.4,0O,00O/. for the deatl,r ol. 'l'h u ngapincli alias'l'hu n gr,r pai I r .lh i rrr p.rt h i, u,as d ismisscd.

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F or the sake of convenience, hereinafter, the parties will be referred as per their array belore the ,,Tribunal,,.

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The bricf lacts ol thr: casc arc lhat applicant Nos. I ancl 2 are the parents of Latc^{,I.hungapindi} alias Thungapalli Thirupathi (hereinafter will bc referred as ,,deceased,). On 28.05.20 13 r.he clcceasecl pr_rrchascd a journcy tickct bearing No. 257OO454 from Peddapally to Mirncherial for travelling in Intcrcity Express train bearing No I 70 1 I . When thr: dcceasccl tried to boarcl the said train, cluc Lo sudden jerks ancl hcavry rtlsh ol thc passenger, thc crcccasr:d rost balance and 1-ell dor.r,n on the raihvay track. As a rcsnlt, lhc clcccased died on the spot duc to grievous injuries. Tr'rc- -i.r-rrney ticket is saicr to have beer-r

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),'1(l P.^l (l \t,\ i l6j .la)Lli

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r:omPlaint.^i?P:l lost clu;:in11^{r:he accrclenl l-lasecl onthc} 1 20 of^{201 3'll'c} Mancherial^{rcgistereda casr: itiCrirne No} applicants,^{vrhoare l-ltc dt:perr<JenLs of the deceased' havefilcci} tlain:^{applicationlur Rs S UC't)00;-rrs (otlip('ilsalionin vicw of} iiccisiorr^{of r-hc Apex Court irr Rathi }ilenon''usl)'nion Af Indiot'}

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4 . Thc respondent^{filcd coLtrltei cle:r'yingthe avertltr>n"s of lhc} application^{.I t was fur[herr:otl Lended that tkre dcceased u/as not} a bonaflcle^{p-assengeratld 1'he dcath of Lhc dcceasedis trot on} ncc()Llrlt ol tttl^{untou'ard lttt:i'Jt:trtl)Lll. thc clec'lased(iicd dLt'lLo} his :;ole^{ncgligenceby boarrling tht: rutrrLiugtrain' u'l-ricir is; rr} pr-ohibitcd act.^{Flence,thc responrJcntrarh'vayjs nol liable to} pa-y compcnsation^{anrl finalll' pral'c'lto clismiss the appliczrlion}

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If cforc tl-re^{Tribunal, theappliczrnls'irl ordt:rto} substanliatethcirclarrn,theapplicantNoigotexaminedas AW. 1^{ancl got examinedAW 2 and markedFlxs A llo A'8' On} behall of^{the Respondcn[' norle v''erc exanrincd but got marked} Ex.R. I^{i.e., DivisionalRailwav Manager's report'}

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(';. The^{'l'ribunal, aftcrcorrsideringbc'th oraland} documentaly^{evidencc placedr:n rccord' observed that any} criminal act^{on the part of lhe passengers} exoIIeraLes^the under railwayadministrationfrompaymentofcompensatton

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'^{2ool sc-c (('ri) ll II}

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MGP,J cMA i 162 20 u-.r

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-l

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the proviso Section \24-A ol the Act and dismissed the claim application. Aggrieved by the said order, the applicants have preferred the present Civil Miscellaneous Appeal

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Heard both sides and perused the entire record

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The main contention of the iearned counsel for the applicants is that the applicants have proved their case by examining AWs. l and 2 and relying on documents under Exs.A. 1 to A.8, but the Tribunal without considering the same has erroneously dismissed the claim application based on the evidence adduced on behalf of the respondent.

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Learned Standing Counsel for the respondent contended that the deceased is not a bona fide passenger and that he did not die in an untoward incident. It is further contended that the Tribunal after considering ali the aspects, has rightly dismissed the application and the same needs no interference by this Court.

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In order to substantiate their contentions, the applicant No. 1, father of the deceased, got examined himself as AW. 1 and in his evidence, he reiterated the averments of the application. He deposed that the deceased is his son and on 28.05.2013 the deceased along with AW. 2 went to Peddapally railway station. He further deposed that at about 10:3O a.m., on

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M(it,,.; ctvlA t 162 201 8

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thc very samc day, hc came io i<ncrrv that his deceased son purchased a journey ticket bearing No. 25700454 for travelling from Peddapally to Mancherial and acciciently fallen down from thc runl-ring train at Peddapally railway sta-tion and^succum.l-:ed to the grievous injuries. AW. 2 namely U.Sadanadam^dcposed that on 28.05.2013 aL about 09:00 hours^{tre along lvith the} dcceased reached Peddapally railway station^{and the deceasecl} purchased a^journey ticket. bearing No. 25700454^{for travelling} from Peddapalty to Mancherial in his^presence. He^furt.her deposed that when the deceased was Lrying^{1-o boardthe said} train thcn the said train suddenly started^{rnovit-tg wil-h jerks. I-le} also deposed that when the inside^{passengerslifting the bags of} other passengers from platform, one of such^{bag pushed the} deceased and as such, the deceased^{rvas imbalancedarld} accidcntly fallcn down from the moving^{train, due to which, the} deceased succumbed to the^grievous injuries^{on the spot.} Admittedly, AWs. l and 2 were cross^{examinedat length but} nothing adverse was elicited to disbelieve^{their evidence.}

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On the other hand, on behalf of^{the respondent Railways,} Ex.R1 i.e., DRM Report was^{marked, which clearly discloses} that the deceased was not having any^{Railway journeyticket} and the incident occurred a[ the time of boarding^{into the said} moving train. It is further stated that the said train^{rcached at}

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)

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MG P,J cMA i 162 2018

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Peddapally railway station aL 09:42 hours and there is sufficient time to board into the said train. However, the deceased tried to board the train at last moment, slipped and fell down on the railway track. Further, as per Guard's statement there were no jerks and jolts.

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It is pertinent to note that Ex.A. 1, attested copy of F.l.R; Ex.A.3, attested copy of Inquest report and Ex.A.7, Final report, would make it abundantly clear that the deceased accidently fallen down from the train and died on the spot. Further, Ex.R. I Report discloses that the passcnger guard stated that the deceased died while boarding the said moving train. However, the said passenger guard was not examined by the Railways. Therefore, the contention of Iearned standing counsel for the respondent that there was conlributory negligence on the part of the deceased in the incident, is unsustainable.

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Now, it is to be ascertained as to whether faliing down from the moving train can be considered as untoward incident. In Rina Deui u. Union of India2, the Honourable Supreme Court held as follows:

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"In Pushpa (supra) a hatuker died in the course of boording a train. It uas held thot he u)as not entitled to compensation as it was a case of 'self inJlicted injury'. The releuant obsentations are: "Such an ottempt by a hauker has been uietued by the tial Court as something amounting

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(2019) 3 SCC 572

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I{C P,J cMA 1 162 2018

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to cr':"minaL negLigence on h.is parl an.d cLlso an effort to inJTict injunes to hhnself. The trtctl Court reasoned that if tlrc rieceased had to selL his^ goods by boarding o train, he should haue en-sured to Co so onlg uhen it LDos quite safe for him, to get on to the ttain or otheru:tse he could Ltaue ouoided catching the train and ulaited for attother train to conle. It also hinted that there was clbsolutelA no compulsion or lturug for^{the decease.din the prese-nt case to ntake an attentpt to} somehott or the other boord the train Luhile it was qatheing speeC."

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16.5 In Shgann Naragan (supra), same uietu uLas token u.thich is as follotus: "6(ii) I connot agree with the arryments urged on behalf of the appbllants/ applicants in the facts of tle present ca.se because there i^s a difference betueen an untoutard incident nnd an act of ciminal negligence.^tllhereas neglig€nce uilt not disentitle grant of compensatiort under the Roitu.tttys Act, houeuer, once the negtigence becornes a crirninal negligence an.d self-tnJlicted injury Lhert compensaliort cann.ot be lJranted. ?his is specifically prouided in tlte frsi prouiso to Section 124 A of the Railu.tags Act u.thiclt prouides tLlat contpensation tuill not be pagabLe in case the death takes place on account of suicide or attenpted suicide, setf inJlicted injury, bona fide passenger's ou.tn ciminal act or an cLct committed bg the deceased in the state of irttoxication or insanitg. "

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16.6 We are unable tr-t uphold the ctboue uieu.t as the concept oJ 'self inJlicted injury'tuould require intention to inJlict such injury and not me.re negligence of ang particuktr degree. Doing so tuould amount to inttolcing the principte of contributory negligence u.thich cannot be done in the case of l.iabititg based on'no fa.uLt theory'. We may in this connection refer to^judgment of this Court in United India Insurance Co. Ltd. uersus Sunil Kumar34 laging down that plea of negligence of the ui.ctim cannot be allouted in claim based. on 'no _fanit theory' under Section 163A of the Motor VehicLes Act, 1988. Accordinglg, tue hold that death or injury in the course of boarding or de boarding a troitt tttill be an 'untou-tard incident' entitling a uictim to the compensation and uill not fall under tlrc prouiso to Section 124A merely on the plea of negligence of tlrc uictim as a contibuting foctor."

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1.4. hr view of the principle laid dowu in the above said authority, falling from the train while boa.rding the said moving train will not fa11 un<ler the exceptions of Section 124-4 of the

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MGP,J cMA I 162 2014

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Act and certainly it amounts to an 'untowarci incident'. A perusal of the impugned order discloses that the Tribunal observed that boarding the moving train, is a punishable offence under Section 147 of the Act. Though Tritrunal obserwed the contradictory statements in the version of railway officia1s, the findings in Ex.Rl were accepted. In such circumstances, the Tribunal ought to have considered the settled principle of law that if two interpretations are possible, the interpretation that is beneficial to the applicanLs has to be preferred, as the Railway Claims Tribunal Act is enacred to protect the interests o[ the passengers as held by the Honourable Supreme Court in tjnion of India as. Prabhakaran Vijq.ga. Kurno€. Viewed from any angle, this Court is o[ the considered opinion that the applicants have established that deceased died in an untoward incident.

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The other contention of learned Standing Counsel for the applicants is that since no ticket was available with the deceased at the time of the accident, the deceased was not a bona-fide purchaser as on the date of the accident and thereby, the applicants are not entitled for any compensation. However, the railway authorities did not even venture to search the bodv of the deceased for the presence ofjourney ticket.

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(200E) 9 SCC 527

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MGP,.J ctuA I 162 201 8

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In Rina Devi (supra), the^{IlonottratrleSupreme Court}

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held as foilows

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"We thtts hotd that^{nterepresenceof a bodg on} the Railtt-tag premise.; uill^{not be conclusiueto hold that} injured- or deceosed u..tas a^bona Jlde^passenger for uhich claim for compensation^{could be maintoin'ed'} Houteuer, mere o.bsence^{of ticket tttith such injured or} deceased u.till not negcttiue^{tLe claim that he utas a bona} fide^{passenge,r.Initial butden utill be on the claimant} -uhich can be discharged bg fiIit'tg an affidauit of the releuant facts and burden will^{then shift onthe} Raihaags and the^{issue cart be decidedon the} facts shoutn or tLrc attending^{circumstances. This tuill haueto} be clealt utith from case^{to case on the basisof} facts fourtd.^{'the legat position tnthis; re-gard utill stand} e xpl aine d acco^r ding ly.^"

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In the present^{case, the applicants have filed affidavit of} AWs. i and 2 along with^{the documentary evidence in the fortn} of Exs.A. 1 to A.8 and thus,^{theyhave dischargedtheir initial} burden. Accordingly,^{the burden shifts on to the respondentto} establish that the deceased^{was not a bonafdepassenger' In} discharge of such^{burden, the respondent got marked Ex Rl} i.e., DRM report, which^{discloses that the passenger guard, who} gave statement, has deposed^{about the incident and as per him,} the deceased succumbed^{to the injuries whilehe was trying to} boarcl the moving train. There^{fore, merely because the deceased} was not possessing^journey ticket, it^{cannotbe said that the} deceased did not die in an untoward^{incident. Thus,the}

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MGP,.J cMA I 162 2018

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contention of the Iearned standing counsei lor the respondent that no untoward incident has occurred, cannot sustain.

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Keeping in view all facts and circumstanrial evidence available on record and the observations made by the Apex Court in Rina Devi (supra), this Court is of the considered view that though mere absence of ticket with the deceased wilt not negate the claim that he was a bona _/ide passenger, however, initial burden will be on the applicants, which was duly discharged by them by adducing the eviclence of AWs. I and 2 along with Exs.A. 1 to A.8.

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Therefore, in view of the principle laid down in the above said authorities, this Court is of the considered opinion that the Railway Claims Tribunal without considering all these aspects came to the wrong conclusion by dismissing the claim application of the applicants and hence, the said findings of the Tribunal are hereby set aside. Hence, the applicants are entitled lor compensation.

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Coming to the quantum of compensation, in case of death in an accident which occurred before amendment i.e., on 02.1O.2O1,O, the prevailing basic figure in respect of death case was Rs.4.0O lakhs, which has been subsequently enhanced to Rs.8.00 lakhs as per the Railway Accidents and Untoward

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MCP,J CN4A ] 162 20^LS

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Incidents (Cotnpen sat.iot.t)^{Amendrneut Rulcs,20 l6'At this} juncture, it is appropriale to rcfer to^{the rlecisionof the Apex} Court in the case of Urrion^{of Indta as. Radha Yadanfl,}

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wherein i[ was held as^foliorvs:

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" 1 0 . TlLe issue^{rar-serlin lhe n.atter doesnot reallg} reqtdre ang ektboration^{os Ln oLLr uiew, the} itldgnTent^{of lhis} Ciurt in the case of^{Rinc.Deui, 2018 ACJ 1441(SC)'is uery} ciedr. What this Court^{has land dcu'n is that tirc omountof} compeftsation^{pagabte on tirc date ofaccidetttuith} reosonattle rate of interest^stnll first^{be calcLllotedifthe} amou4t so calculateri^{i-s less than tlle amount prescribedrts} on. tttrz date. of the award.^{the claimant u.''ouldbe enlitletl to} higher of these tt o omounts.^{There.fore,iJ the liabilitg} -had ais.r, |re1rr.^{the anenclntentwas broughttn, the basic frgure} u,outd bi as per the^{Schecluleas was irl eistencebefore the} amend.tnent^'o,r4 o,1^{5tt<:lt basic} figure^{reasonablerate of} interest u)oul(1 be^{calcuLato-d. lftlrcrebe ang drfference} betueen. the annount^{so calculoted ond thedtnourLtprescibed} in the Schedule^{as on the da.teof tlTe atuard' tlrc htgherol ttuo} figures^{would be the measure of comy-'ensation'Forinstatrce} -ii case o-f a death rn on accident ttthich occuted before amendme'ftt,^{the basLc} ftgure^{uouLdbe 11s.4,00,O00/ 'lf' cfter} apptgirtg rensonable^{roteoJ'Lnterest. the} llnal figure^{were to} t.' tittilrrn Rs.8,00,000/ ,^{which uas brougllt in bg tuag oJ} amendrnent, the^{cloimo)Lt ntouid be erLtitledto Rs 8,00'OOO/-.} lJ, twueuer, the^{amoutrt ol oigttat compensation wit^1ate} 3f interest u,iere to^{exceed theslon ofRs'8,0o'0o0/-tlae} c.ompensation wouLd^{be intermsof} figure^{irt exces-s} 9f ns.i,Oo,oOo/-. The^{idea is ro ctfford the benertt ofthe} amendment, to^{theextentpossibLe- Thus, occording to Lts'the} maLter is crystal^clear'"

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The applicants^{are also entitledfor interest @ 7o/o pet} annum on the^{compensation amount as per the decision of the}

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Honourable Supreme^{Court in Kamukagia' I|niofto.f Ittidds '} From the clate of application^{i.e.,26'06'2013 to the dateof order} .e., O4.O9.2O23,^{tbe applicants are entitled for interestfor 10} years 02 months =^{122 months.}

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'^{(2oo4)2 scc1}

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"^{btvlappearuo. 37ggot 2023 (Aflsrngour of sr,p (cl No t7o62/2022) dcci.re.lon16.05.2023}

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MGP,J cMA t 162 2018

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Thus, the interest entitled by the applicants is calculated as follows:

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Rs. 4,OO,000/- x7llOO = Rs.2,84,667 l-

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(for 10 years 02 months i.e., 722 months)

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Therefore, the interest along with the compensation amount, to which the applicants are entitled prevailing at the time of the accident comes to Rs.6,84,667 I (Rs.4,O0,OOO/- + Rs.2,8a,667 l-).

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However, as per the decision of the Apex Court in Ro;dha Yadaa's case (supra), if, after applying reasonable rate of interest, the final figure were ro be less than Rs.g,00,0O0/-, which was brought in by way of latest amendment, the applicants would be entitled to Rs.S,OO,oOOl If, however, rhe amount of original compensation with rate of interest tvere to exceed the sum of Rs.8,00,O00/-, the compensation would be in terms of hgure in excess of Rs.8,0O,0OO/-. In the instant case, the final figure comes to Rs.6,84,66T l-. Therefore, the applicants are entitled for the compensation ol Rs.g,OO,OOO/ -.

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In the result, the Civil Miscellaneous Appeal is allowed by awarding the compensation amount of Rs.g,OO,00O/ and the order dated 04.10.2018 in OA II (U) No. 173 of 2Ot3 passed by the Railway Claims Tribunal, Secundcrabad Be nch, at

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MCi P,.] cMA_1162 2018

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Secunderabad is set aside.^{The respondent Railwaysis directed} to deposit the compensation amount^{before the Tribunal within} a period of two months from^{the date of receipt of a copy of this} judgment. On such deposit, the applicants are entitled^to withdraw the compensation^{amountwithout furnishing any} security. There sha1l be no order^{as to costs.}

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Pending Miscellaneous^{applications,ifany, shallstand}

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closed.

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SD/. B.S.CHIRANJEEVI JOINT REGISJRAR e'/

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//TRUE^COPY//

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SECTION^OFFICER

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To, I The Vice^{Chairman (Judicial)' Railway Claims Tribunal' Secunderabad Bench'} 2 S"":'3t"f^{'^S.i1$LLTi,'Sil^'=^!tRnd.'e:'::tP:WAdvocateropucl} 3 5'nI;;^{i" sr',rf e nur<rtlxr (sc FoR cENTRALGov} 4 Two CD^CoPies NS \ P-

HIGH COURT

MGP.J

DATED:04/09/2023

JUDGEMENT

CMA.No.1162 of 2018

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