2010(2) ALL MR 631
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.S. MOHITE, J.

Shri. Sahadeo Sindhu Sanas & Anr.Vs.Union Of India

First Appeal No.35 of 2005

4th January, 2010

Petitioner Counsel: Mr. M. B. KOTAK
Respondent Counsel: Mr. A. N. SAMANT

Railways Act (1989), S.123(2)(c) - Untoward incident - Meaning and construction - Word 'untoward incident' should not be given narrow and restricted meaning - Though S.123(2)(c) talks about accidental falling of a passenger from train, actual falling need not necessarily be outside the train.

Though the wording of S.123(2)(c) talks about accidental falling of any passenger from a train carrying passengers, the actual falling need not be outside the train. There can be cases where the passenger can be accidentally hit say by a stone pelted by a miscreant from outside, who falls within the train. The wording of S.123(2)(c) does not require that he should necessarily fall outside the train. Emphasis of the said definition is on an untoward incident caused in an accident and once the accident has occurred not much importance can be given as to whether body of passenger falls inside or outside train. 2008(5) ALL MR 917 (S.C.) - Rel. on. [Para 10]

Cases Cited:
Union of India Vs. Prabhakaran Vijaya Kumar, 2008(5) ALL MR 917 (S.C.)=2008 ACJ 1895 [Para 5,10]
Union of India Vs. Suchitra Ganesh Pathare, 2009(2) ALL MR 837=2009 ACJ 394 [Para 6,6,A]
Tahazhathe Purayil Sarabi Vs. Union of India, 2009 ACJ 2444 [Para 11]


JUDGMENT

JUDGMENT :- The appellants who are the parents of the deceased Arvind Sanas have filed this appeal impugning a judgment and order passed by the Members, Railway Claims Tribunal, Mumbai Bench in Case No.O.A. 2002 255 on 4.6.2003 by which the Tribunal has dismissed an application for compensation filed by the appellants.

2. The facts of the case as made out from the application was that deceased Arvind Sanas boarded a train at Byculla Railway Station at 9.30 a.m. and when the train came near Pole No.KM-27 his body came in contract with the railway pole since he was leaving out at the door. Thereby he sustained serious injuries and collapsed in the railway compartment itself. The body of the deceased Arvind was thereafter removed to K.E.M. Hospital. However, he failed to respond to the medical treatment and died in the Hospital on 11.8.2001 at about 8.30 a.m..

3. The defence of the respondents was that though the death of the deceased actually occurred due to an accident, it was caused due to his own negligence and the injuries suffered by him were thus self inflicted injuries.

4. At the stage of evidence, the appellant No.1 - Sahadeo Sindhu Sanas entered into witness box and restated the incident as stated by him in his claim application. He was cross-examined. After his cross-examination was over, though the respondents were granted an opportunity to lead their evidence they chose not to lead any evidence. In the affidavit in lieu of examination-in-chief, the appellant No.1 placed on record four documents and document No.4 was the Inquest Panchanama of the dead body conducted after his death on 11.8.2001 at K.E.M. Hospital.

5. On the basis of the aforesaid material, the tribunal passed the impugned order dismissing the application by holding that the applicants failed to prove that their son Arvind Sanas died in untoward incident as defined in Section 123(c) of the Railways Act, 1989. It was contended on behalf of the appellants that Section 123(c)(2) has now been given a wide interpretation by the Apex Court in the case of Union of India Vs. Prabhakaran Vijaya Kumar and others reported in 2008 ACJ 1895 : [2008(5) ALL MR 917 (S.C.)]. In that case, a passenger tried to board a running train, fell on the railway track and was run over by the train. It was sought to be contended before the Apex Court that these actions on the part of the deceased would not within the expression "Accidental falling of passenger from train carrying passengers" within the meaning of Section 123(c)(2) of the Railways Act. The contention was rejected by the Apex Court and in Para 14 of the Judgment the Apex Court observed as under.

"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 the 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 bonafide 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."

6. Advocate for the appellants then relied upon a judgment of the Single Judge of this court in Union of India Vs. Suchitra Ganesh Pathare and others reported in 2009 ACJ 394 : [2009(2) ALL MR 837]. The facts of that case were some what similar with the facts of the present case. A passenger who was travelling by a railway train was hanging out side the compartment on account of heavy rush in the train and his body hit a pole fixed near the railway track. Consequently he fell down and succumbed to the injuries suffered by him. The contention raised before this court was that the passenger had no business to hang out of the train and that injuries caused by his own improper act must be said to be self inflicted injuries. In this context, the Single Judge of this court made the following observations.

"Sub-Clause (2) of Clause (c) of section 123 of the said Act provides that the accidental falling of any passenger from a train carrying passengers is an "untoward incident". Section 124-A provides that when an application is made by a dependent of a passenger who has been killed in the course of an untoward incident, it is not necessary for such dependent to prove any wrongful act, negligence or default on the part of the railway administration. The other condition for grant of compensation on account of untoward incident is that the person killed must be a passenger i.e. a person who is either a railway servant on duty or a person who has purchased a valid ticket for travelling by a train carrying passengers. There are five exceptions carved out by proviso to section 124-A. Obviously, clauses (a), (c), (d) and (e) cannot be invoked in the present case. The question is whether the deceased succumbed to death on account of self inflicted injury ?

In the present case, the deceased was travelling by a suburban local train in the city of Mumbai. The incident occurred at about 18.35 hours. A judicial notice has to be taken of the fact that in the city of Mumbai the suburban local trains are always over-crowded. In the present case, the incident has taken place during evening rush hours. It is a fact of life in the city of Mumbai that it is very difficult even to enter 2nd class compartments of suburban local railway trains at any hour during the course of the day. Especially in morning and evening rush hours the situation is worse and forcing one's entry in a train becomes a daunting task. The situation not different even on a public holiday. The passengers who normally travel by suburban trains in the city have no choice but to undertake travelling by overcrowded suburban trains only with the object of reaching their respective places of work for earning livelihood. To keep up with the speed with which the city of Mumbai moves, the passengers have no option but to stand near the doors of the compartment as it is impossible to force entry inside the compartments. No purpose is served by waiting for the next train as the situation continues to be the same. There are poles/posts erected by railways near the railway tracks for carrying electric and other cables. A person who stands at the door on the footboard has to survive the enormous pressure exerted by the passengers who are standing inside. There is every possibility that a passenger who is standing at the door may lose his balance due to the pressure of heavy rush. In such a case there is every likelihood that he will be hit by a pole/post standing by the side of railway track and suffer the inevitable.

However, there may be cases where a passenger is adventurous and though it may be possible to enter the compartment he may choose to hang outside the door on the foot board. When such a person suffers the fate as the deceased in this case has suffered, it is possible to say that he had suffered a self inflicted injury. But that is not even the case made out by the railway administration in the present case before the Tribunal. No such specific case is made out in written statement. This is a case where the deceased along with his wife were travelling by a local train to meet their relative at Bhandup.

There is more than sufficient evidence on record to show that it was a case of accidental fall from the train. By no stretch of imagination any negligence can be attributed to the deceased. It does not lie in the mouth of the railway administration to say that as the deceased passenger was standing on the foot board near the door of the compartment, he was negligent. It is an accepted fact in the city of Mumbai that the passengers are forced to stand near the door due to perpetual over crowding of the suburban trains. There is no option left with the passengers but to do so if they have to reach the place of work in time.

Therefore, present case will not fall in the category of exception carved out by clause (b) of Section 124-A. This court cannot shut eyes to the ground realities of the life in the city of Mumbai. There is no contest on any other ground regarding entitlement of the original appellants to claim compensation."

6-A. On behalf of the respondents it was sought to be contended that according to the claimants themselves, their son did not fall from the train but after suffering injury he collapsed in the compartment itself. It was sought to be contended that due to this factual distinction the present case differs from the case decided by a Single Judge of this court in the case of Union of India Vs. Suchitra Ganesh Pathare and ors. (supra).

7. After perusing the entire record, I am inclined to allow this appeal by accepting the contention raised by the appellants and by rejecting the contention on behalf of the respondents.

8. Relevant portion of Section 123(c) of the Railways Act reads as under :

"123 -Definitions - In this chapter, unless the context otherwise requires-

a) ----

b) ----

c) untoward incident means-

(1) ----

(2) the accidental falling of any passenger from a train carrying passengers."

9. In the present case it must be remembered that the father of the victim was an illiterate villager residing in his village at the time of accident. He was not eye-witness. The record indicates that the incident was enquired by the Sandhurst Road Station Master and the investigation report was produced on record as document No.2. The investigation report does not indicate that the body of the Arvind fell inside the compartment. The inquest panchanama which is also signed by the Investigating Officer categorically states that the body fell down from the train and hit a pole. This court is unable to accept that in a city like Bombay any person can be hit by a railway pole even if he is hanging outside in a running train. Judicial notice can be taken that thousands of people travel every day by standing at or leaving from the door of the compartment for want of sufficient place inside the compartment and if poles could hit the persons leaving out then hundreds of commuters would be mowed down every day. In my view, the inquest panchanama which is the only documentary record indicates that the deceased Arvind fell from the train and was hit by a pole. In this regard, the respondents, who must have been in the know of the correct fact as the enquiry was conducted by the Station Master, have chosen not to lead any evidence whatsoever.

10. Apart from the aforesaid factual position as observed by the Apex Court in the case of Union of India Vs. Prabhakaran Vijaya Kumar and ors. Reported in 2009 ACJ 1895 : [2008(5) ALL MR 917 (S.C.)] a restricted and narrow meaning should not be given to Section 123(c) of the Railways Act as that would deprive large number of victims in train accidents from getting compensation under the Act. In my view, though the wording of Section 123(2)(c) talks about accidental falling of any passenger from a train carrying passengers, the actual falling need not be outside the train. There can be cases were the passenger can be accidentally hit say by a stone pelted by a miscreant from outside, who falls within the train. The wording of Section 123(2)(c) does not require that he should necessarily fall outside the train. Emphasis of the said definition is on an untoward incident caused in an accident and once the accident has occurred not much importance can be given as to whether body of the passenger falls inside or outside the train.

11. In view of the aforesaid findings, in my view, it is required to be held that the respondents were liable to pay compensation for the death caused to the deceased Arvind in the accident in question. As regards the liability there is no dispute that under the Railways Act, 1989 read with Rules, provide for fixed compensation at Rs.4/- lacs. On behalf of the appellant, it was argued that the interest should be given at the rate of 9% per annum from the date of the application. Reliance was placed upon a judgment of the Apex Court in the case of Tahazhathe Purayil Sarabi and others Vs. Union of India and another reported in 2009 ACJ 2444. In that case the Apex Court was dealing with a claim under Sections 124 and 124-A of the Railways Act, 1989 and they negatived the contention that no interest was payable and held that court has power to grant interest by invoking provisions of Interest Act and Section 34 of the Code of Civil Procedure. In the judgment before the Apex Court, interest has been granted by the tribunal itself. In the circumstances, the Apex Court upheld grant of interest at 6% per annum from the date of application till the date of award and 9% from the date of the award till the date of making of actual payment. In the present case, however, there is no wrongful awarding of any amount because no order was passed in favour of the appellants and there was thus no liability on the respondents to pay. The respondents cannot therefore, be said to have wrongly withheld any amount due to the appellants. I am also not inclined to penalise the respondents for the judicial delay. In the circumstances, I am restricting the payment of interest from the date of this order till the actual payment is made at the rate of 9% per annum. Counsel appearing for the Railways states that the compensation will be paid within four weeks from the date of receipt of the certified copy. In the circumstances, I pass the following order.

ORDER

a) Appeal is allowed.

b) The respondents are directed to pay Rs.4/- lacs as compensation along with interest at the rate of 9% per annum from the date of this order till the date of actual payment, within four weeks from the date of receipt of the certified copy of this judgment.

c) No order as to costs.

d) Certified copy expedited.

Appeal allowed.