Further, the case comes under Section 123 (c) r/w y
124-A of the Railways Act, 1989. It incorporates 'Rule of Strict
Liability'. The basis of the doctrine of 'Strict Liability' is twofold : - (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 being in the best position to spread the loss via insurance and higher prices for its products (see Torts by Michael Jones, 4th Edn., p. 267). In India, landmark Constitution Bench decision of the Supreme Court in M.C.
Mehta v. Union of India [AIR 1987 SC 1086] has gone much ahead than Rylands v. Fletcher in imposing strict liability. The
Hon'ble Supreme Court observed thus :-
"if the enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise
absorbing the cost of any accident arising on account of such
hazardous or inherently dangerous activity as an appropriate item of its overheads."
10. Thus, in cases wherein the Rule of 'Strict Liability'
applies, the Railway Administration has to pay compensation for
injury caused to the passenger, even though it may not have been at any fault. In such circumstances, question of finding as to
upon whom the fault lies is irrelevant. In such circumstances, the Railway is bound to pay compensation to the claimants.
Bombay High Court
Central Railway v Smt. Sitabai Vasane,on 4 July, 2013
Bench: A.P. Bhangale
FIRST APPEAL NO.468 OF 2010
Central Railway,
// Versus //
1. Smt. Sitabai Vasane,
1. The appeal is by Railways against the Judgment and Order dated 11-01-2010 passed by the Railways Claims Tribunal, Nagpur Bench, Nagpur in Claim Application No.118/OA-II/RCT/NGP/2006 awarding compensation in the sum of
Rs.4,00,000/- to the respondents. The question raised by the appellant/Union of India - Railways in this appeal is as to ou
whether the Railway Tribunal was right to award the claim in favour of the dependents of deceased Bhagwan Tukdoji Vasane C
on the ground that he, while travelling as a bona fide passenger by Train No.1386 Up Nagpur-Bhusawal Passenger on h
11.06.2005, met with an untoward incident covered under ig
Section 123( c ) of the Indian Railways Act, 1989. My answer is H
affirmative for the following reasons. y
2. The facts are :- ba
om
On 11-06-2005, deceased Bhagwan had gone to Malkapur. He had taken a ticket from Malkapur to Bhusawal by Train No. 1386 Nagpur-Bhusawal Passenger. Due to sudden jerk B
in the heavy rush, he fell down at KM 493/3, in front of Wireman's duty room of Malkapur Police station and died. The respondent no.1 herein had filed the Claim Application for ::: Downloaded on - 06/07/2013 09:28:44 ::: 4 fa468.10.odt compensation in respect of the alleged untoward incident. The rt
Railways resisted the Claim on the ground that the deceased came from the offside of Platform no.1 and had committed ou
suicide in front of the break Van by coming in front of the train and died. Alternatively, it was contended that the intending C
passenger must come to the Station at least 20 minutes before arrival of the train. The passenger shall not lean upon or open h
the carriage door or step down or enter in to carriage when train ig
was in motion. The Railways, in the alternative, contended that H
the deceased died due to his own criminal act of negligence and the incident was not an untoward incident covered under Section 123 ( c ) or Section 124-A of the Indian Railways Act, y
ba
1989. The Railways also disputed that the respondent were dependent on the deceased. The Railways also disputed their om
liability on the ground that there was no legal evidence to establish that the deceased held valid railway ticket to travel by the train.
B
3. On behalf of the appellant, it is submitted that the Tribunal erred to pass the Award in favour of the respondent without legal proof of the untoward incident. The Railways had ::: Downloaded on - 06/07/2013 09:28:44 ::: 5 fa468.10.odt alleged that the deceased committed suicide in front of the train rt
and was not the bona fide passenger in the train for claiming that he had accidental fall from the train due to heavy rush. ou
4. Reliance is placed upon the ruling in Union of C
India, South Central Railway, Secunderabad .vs. Kurukundu Balakrishnaiah, Done, Kumool District and Others reported in h
2004 (1) ALT 100 (F.B.) to argue that if a person trying to board or alight from the train, or standing near the door, jump ig
from the compartment, crossing the Railway tracks or leaning out H
of the compartment and felling down as a result and either injured and died, such person is not entitled to compensation y
under Section 124 -A of the Indian Railways Act. It is contended ba
that the Tribunal, therefore, erroneously granted the claim.
5. Mr.K.S.Narwade, learned Counsel appearing on om
behalf of the respondents, who argued to oppose the above submissions, contended that the Tribunal had correctly granted B
the Award finding that the appellant did not prove that the deceased committed suicide, as alleged, despite the burden of proof upon the Railways. A valid railway ticket was recovered ::: Downloaded on - 06/07/2013 09:28:44 ::: 6 fa468.10.odt during the inquest panchnama indicating that the deceased was a rt
bona fide passenger travelling by the train from Malkapur to Bhusawal. The timings were "tell a tale" circumstances that the ou
deceased had fallen down due to heavy rush and immediately the train had stopped. The deceased had boarded the train at 14.01 C
hours. The train departed from Malkapur at about 14.03 hrs. The train stopped at 14-05 hrs. h
6. I have seen the record and proceedings from the ig
Tribunal. At this stage, it is relevant here to note Sections 2(29), H
123, 124-A of the Indian Railways Act,1989. They run as under:- y
Section 2(29) : 'Passenger' means a person travelling ba
with a valid pass or ticket.
123. Definitions.-
om
(a) "accident"; means an accident of the nature described in section 124;
B
(b) ........
(c) "untoward incident" means-- ::: Downloaded on - 06/07/2013 09:28:44 ::: 7 fa468.10.odt (1) (i) the commission of a terrorist act within the meaning of sub- section (1) of section (3) of the rt
Terrorist and Disruptive Activities (Prevention) Act, ou
1987 (28 of 1987) ; or
(ii) the making of a violent attack or the commission of C
robbery or dacoity; or
(iii) the indulging in rioting, shoot- out or arson, by any person in or on any train carrying passengers, or in a h
waiting hall, cloak room or reservation or booking office ig
or on any platform or in any other place within the precincts of a railway station; H
or (2) the accidental falling of any passenger from a train carrying passengers. (emphasis supplied by y
me).
ba
Section 124-A:- Compensation on account of untoward om
incidents:-
124A. When in the course of working a railway an B
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 ::: Downloaded on - 06/07/2013 09:28:44 ::: 8 fa468.10.odt dependant of a passenger who has been killed to maintain an action and recover damages in respect rt
thereof, the railway administration shall, ou
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 C
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 h
railway administration if the passenger dies or suffers injury due to-
ig
(a) suicide or attempted suicide by him; H
(b) self-inflicted injury;
(c) his own criminal act;
y
(d) any act committed by him in a state of intoxication ba
or insanity;
(e) any natural cause or decease or medical or surgical treatment unless such treatment becomes necessary om
due to injury caused by the said untoward incident. Explanation.- For the purpose of this section,";passenger" B
includes-
(i) a railway servant on duty; and ::: Downloaded on - 06/07/2013 09:28:44 ::: 9 fa468.10.odt (ii) a person who has purchased a valid ticket for travelling, by a train carrying passengers, on any date or a valid rt
platform ticket and becomes a victim of an untoward incident.
ou
7. The respondent had relied upon the documentary C
evidence in the form of copy of F.I.R., Spot Panchnama, Inquest Panchnama, P.M. report, train ticket which was recovered by the h
Railway Police from the dead body of the deceased Bhagwan, ig
husband of the claimant Sitabai, summary report of the accidental death, Certificate that the claimants were dependents of the H
deceased to prove prima facie that deceased Bhagwan died on 11.06.2005 due to untoward incident while he was travelling by y
Nagpur-Bhusawal passenger train as a bona fide passenger. In the ba
instant case, the initial report was that a person on the up track, had come between compartments and then the train was stopped om
(" Gadi ke beech me aakar dabbo ke beech gus gaya bad gadi ko roka") The person who reported this was not examined by the Railway Administration. Assumption that unknown person committed B
suicide was without any rational basis. More so, when the Inquest panchnama reveals that the a valid Railway ticket, dated ::: Downloaded on - 06/07/2013 09:28:44 ::: 10 fa468.10.odt 11.06.2005 bearing No. 40503 was found from the dead body rt
giving rise to an inescapable inference that he was bona fide passenger from Malkapur to Bhusaval by the train Nagpur- ou
Bhusawal passenger. The Tribunal had before it the evidence as to identity of the dead body as well as the valid railway ticket and the C
heirship Certificate issued by the Talathi, Bhalegaon, Taluka Malkapur in favour of the dependents-claimants. The Divisional h
Railway Manager, Bhusawal had accepted the enquiry report to the ig
effect that, on 11.06.2005, Bhagwan Tukdoji Bhasane, aged about H
45 years was run over by Train No.1386 Up at KM No.494/3 MLKU station and as per police panchnama, the railway ticket was found in possession of the deceased. Sitabai, widow of the deceased had y
ba
filed an affidavit accordingly on the basis of the documents on record. Shri Anil Kumar Pathak, Train Controller, Central Railway, om
Busawal, who claimed that the deceased committed suicide, admitted that he did not see any person committing suicide. One R.G.Kanoje, a loco Pilot, Bhusawal had admitted that no any B
passenger had informed him about the alleged commission of suicide by any person. Thus, suicide could not be inferred in the ::: Downloaded on - 06/07/2013 09:28:44 ::: 11 fa468.10.odt facts and circumstances of the case. No fault can be found with the rt
impugned Judgment and order for to award the compensation. ou
8. The police documents corroborate the version of the claimants that the deceased was a bona fide passenger travelling by C
Nagpur-Bhusawal Up train from Malkapur to Bhusaval with valid railway ticket. The onus is upon the Railways to establish its h
contrary version. However, there was no convincing and acceptable ig
evidence to the contrary from the Railways. In the facts and circumstances, the Tribunal has rightly held that the claimants are H
eligible for compensation.
9. Further, the case comes under Section 123 (c) r/w y
124-A of the Railways Act, 1989. It incorporates 'Rule of Strict ba
Liability'. The basis of the doctrine of 'Strict Liability' is twofold : - (i) The people who engage in particularly hazardous activities om
should bear the burden of the risk of damage that their activities generate, and (ii) it operates as a loss distribution mechanism, the B
person who does such hazardous activity being in the best position to spread the loss via insurance and higher prices for its products (see Torts by Michael Jones, 4th Edn., p. 267). In India, the ::: Downloaded on - 06/07/2013 09:28:44 ::: 12 fa468.10.odt landmark Constitution Bench decision of the Supreme Court in M.C. rt
Mehta v. Union of India [AIR 1987 SC 1086] has gone much ahead than Rylands v. Fletcher in imposing strict liability. The ou
Hon'ble Supreme Court observed thus :- C
"if the enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise h
absorbing the cost of any accident arising on account of such ig
hazardous or inherently dangerous activity as an appropriate item of its overheads."
H
10. Thus, in cases wherein the Rule of 'Strict Liability' y
applies, the Railway Administration has to pay compensation for ba
injury caused to the passenger, even though it may not have been at any fault. In such circumstances, question of finding as to om
upon whom the fault lies is irrelevant. In such circumstances, the Railway is bound to pay compensation to the claimants. B
11. Learned Counsel for the respondents then contended that the Award ought to carry reasonable rate of interest in view of Section 34 Civil Procedure Code read with Section 3 of the ::: Downloaded on - 06/07/2013 09:28:44 ::: 13 fa468.10.odt Interest Act. The Tribunal, therefore could not have refused grant rt
of reasonable interest on the ground that the claim was belated. The learned Counsel pressed into service the ruling in Thazhathe ou
Purayil Sarabi vs. Union of India & another, AIR 2009 SC 3098 to submit that interest on the amount of compensation is C
awardable from the date of the application till the date of realization of the amount of compensation. It is true that the h
Court, while making a decree for payment of money, is entitled to ig
grant interest at the current rate of interest or contractual rate as H
it deems reasonable to be paid on the principal sum adjudged to be payable and/or awarded, from the date of claim or from the date of the order or decree for recovery of the outstanding dues. y
ba
There is also hardly any room for doubt that the interest may be claimed on any amount decreed or awarded for the period during om
which the money was due and yet remained unpaid to the claimants. Normally, when a money decree is passed, it is most essential that interest be granted for the period during which the B
money was due, but could not be utilized by the person in whose favour an order of recovery of money was passed. Interest is essentially a compensation payable on account of denial of the ::: Downloaded on - 06/07/2013 09:28:44 ::: 14 fa468.10.odt right to utilize the money due, which has been, in fact, utilized by rt
the person withholding the same. Accordingly, payment of interest follows as a matter of course when a money decree is passed. As ou
regards the question as to since when is such interest payable on such a decree, though, there are two divergent views, one C
indicating that the interest is payable from the date when claim for the principal sum is made, namely, the date of institution of h
the proceedings till the recovery of the amount, the other view is ig
that such interest is payable only when a determination is made H
and order is passed for recovery of the dues. However, the more consistent view has been the former and in rare cases, interest has been awarded for the periods even prior to institution of the y
ba
proceedings for recovery of the dues, where the same is provided for by the terms of the agreement entered into between the parties om
or where the same is permissible by Statute. The Court/Tribunal may, in its discretion, grant interest from the date of application and also from the date of determination of the claim bearing in B
mind the principles of Section 34 of the Civil Procedure Code and Section 3 of the Interest Act. The Tribunal could not have refused to pay the interest at the rate of 6% p.a. from the date of ::: Downloaded on - 06/07/2013 09:28:44 ::: 15 fa468.10.odt application. No claimant must lose wrongfully merely by coming rt
to the Tribunal belatedly. Often, the claimants as dependents of the deceased, need to come out of grief and shock of losing their ou
near and dear before they approach the Tribunal, hence the reasonable interest due according to general law ought to be C
granted.
12. In the result, the appeal is dismissed. The judgment ig
and Order passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur in Claim Application No.118/OA-II/RCT/NGP/2006, H
dt.11.1.2010 is confirmed and modified to the effect that the appellant shall pay the compensation granted in the sum of y
Rs.4,00,000/- with interest @ 6 % p.a. from the date of the Claim ba
Application till the date of Award by the Tribunal and further interest @ 7% p. a. from the date of the Award till realization in om
full.
The record and proceedings be sent back to the B
Tribunal for compliance of the Award of Compensation with the interest, as awarded.
The Appeal is disposed of accordingly. ou
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