Punjab-Haryana High Court
Shabnam And Others vs Union Of India on 14 November, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2024:PHHC:155598
FAO No.25 of 2023 1
134/14
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Reserved on 25th of October, 2024
Pronounced on 14th November, 2024
FAO No.25 of 2023
Shabnam and others ....Appellants
Versus
Union of India ...Respondent
CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN
Present : Mr. Upender Prashar, Advocate
for the appellants.
Ms. Archana Vashisht, Central Government Counsel
for the respondent-UOI.
PANKAJ JAIN, J. (ORAL)
The appeal has been preferred by the dependents of Shri Shahid
(deceased) on account of his death in an alleged untoward accident.
2. Pleaded case of the claimant is that on 16.02.2020, the deceased
was travelling by a passenger train. He boarded train no. 12446 from Jammu
Tawi Railway Station to New Delhi. When the train was running through
Railway Stations Bhogpur to Cholang, the deceased accidentally fell down
from the moving train into the fields nearby and died at the spot due to
multiple injuries.
3. The respondent/Railways contested the claim of the applicant
on the ground that the incident does not fall under Section 123(c)(2) and
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Section 124A of the Railways Act, 1989 as no incident took place on
16.02.2020 and that the body was found after a gap of 20 hours.
4. On the basis of the pleadings, following issues were framed:
1. Whether the deceased was a bonafide passenger of train at
the time of incident?
2. Whether the alleged incident is covered within the ambit of
Sec.123(c)(2) read with Section 124-A of the Railways
Act?
3. Whether the applicants are the sole dependents of the
deceased?
4. Relief.
5. Tribunal rejecting the claim filed by the claimants holding that
no evidence was produced by the applicants to prove that the deceased was
having a valid train ticket and thus, he being not a bonafide passenger,
claimants cannot maintain the claim petition.
6. Counsel for the appellants submits that the Tribunal has totally
misread the evidence on record. Claimant/applicant No.1 filed an affidavit
and appeared as AW-1. Fard jamatalashi Ex A-3 shows that in the personal
search of the deceased, a railway ticket has been recovered which was
placed on record as Ex A-4. The post-mortem examination of the deceased
also mentions death due to fall from the moving train.
7. I have heard counsel for the parties and carefully gone through
the records of the case.
8. Section 124A deals with compensation on account of untoward
incident. The said provision came on the statute by way of Railways
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Amendment Act, 28 of 1994. Supreme Court in the case of Rathi Menon
vs. Union of India (2001) 3 SCC 714 spelling out the purpose and the
import of the provision observed as under:
“13. Appellant’s claim for the compensation was based on
Section 124A of the Railways Act, 1989 (for short “the Act”).
The said Section itself was introduced as per Railway
(Amendment) Act 28 of 1994. The Section provided for
awarding compensation to victims of any “untoward incident”
which occurs in the course of working of a railway. The
expression “untoward incident” was alien to Railway Act
before Parliament inserted such an expression in the statute as
per the Amendment Act 28 of 1994. Prior to it the Railways
could have granted compensation only to the victims of
“Accident”. As the definition of accident in the Act did not
embrace instances of other types of disasters which frequently
happened during train journeys, the Parliament in its wisdom,
decision to insert a new category of disasters, both man-made
and otherwise, to be the causes of action for claiming
compensation.
14. It was in compliance of the aforesaid intention of the
Parliament that the category “untoward incident” was included
by defining its contours in section 123 of the Act. The Sections
consists of two segments. In the first segment acts such as
terrorists acts, riotous attacks, robbery and decoity which visit
the passengers in the train as well as those who wait within the
precincts of Railway Station are included. In the second
segment, which is the relevant part for the purpose of this case,
is included “the accidental falling of any passenger from a train
carrying passengers.”
15. Now we have to see Section 124A which is the
provision imposing liability on the Railway Administration to
pay compensation to the victims of untoward incidents. Its
proviso excuses from its purview persons who committed or
attempted to commit suicide, persons who inflicted injury by
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self, and those who committed criminal act or acts done in a
state of intoxication or insanity and also the cases affected by
any natural cause of disease etc. After excluding such persons
and cases, Section 124A can be read thus :
“When in the course of working a railway an 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 dependent of a
passenger who has been killed, to maintain an action
and recover damages in respect thereof, the railway
administration shall, 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 by the death of,
or injury to a passenger as a result of such untoward
incident.”
9. Doctrine of strict liability was applied to adjudicate the claims
arising out of Section 124A of 1989 Act by Supreme Court in the case of
Union of India vs. Prabhakaran Vijaya Kumar and others, (2008) 9
SCC 527. Rejecting the plea of ‘no fault on part of the railways’ Apex court
observed as under:
“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.
18. The theory of strict liability for hazardous activities can
be said to have originated from the historic judgment of
Blackburn, J. of the British High Court in Rylands v. Fletcher,
1866 LRI Ex 265.
xxxx
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55. In view of the above, we are of the opinion that the
submission of learned counsel for the appellant there was no
fault on the part of the Railways, or that there was contributory
negligence, is based on a total misconception and hence has to
be rejected.”
10. The exceptions carved out under the proviso attached to Section
124A were interpreted by Supreme Court in the case of Jameela and others
vs. Union of India, 2010 AIR SC 3705. Explaining the meaning of the
expression ‘his own criminal act’, Supreme Court observed as under:
“7. ……. It is now to be seen, that under section 124A the
liability to pay compensation is regardless of any wrongful act,
neglect or default on the part of the railway administration. But
the proviso to the section says that the railway administration
would have no liability to pay any compensation in case death
of the passenger or injury to him was caused due to any of the
reasons enumerated in clauses (a) to (e).
8. Coming back to the case in hand, it is not the case of the
Railway that the death of M. Hafeez was a case of suicide or a
result of self-inflicted injury. It is also not the case that he died
due to his own criminal act or he was in a state of intoxication
or he was insane, or he died due to any natural cause or
disease. His falling down from the train was, thus, clearly
accidental.
9. The manner in which the accident is sought to be
reconstructed by the Railway, the deceased was standing at the
open door of the train compartment from where he fell down,
is called by the railway itself as negligence. Now negligence of
this kind which is not very uncommon on Indian trains is not
the same thing as a criminal act mentioned in clause (c) to the
proviso to section 124A. A criminal act envisaged under clause
(c) must have an element of malicious intent or mens rea.
Standing at the open doors of the compartment of a running
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train may be a negligent act, even a rash act but, without
anything else, it is certainly not a criminal act. Thus, the case
of the railway must fail even after assuming everything in its
favour.”
11. Principal Bench Railway Claims Tribunal submitted before
Apex Court seeking clarification on the following four issues repeatedly
arising before the Tribunal:
“(i) Quantum of compensation: It is stated that there is a
conflict in the decisions in Rathi Menon (supra) and Kalandi
Charan Sahoo (supra) which needs clarification. We have
already taken note of this issue.
(ii) Definition of passenger: Whether any person found dead
near the track on Railway Precincts can be held to be a bona
fide passenger for maintainability of a claim for compensation
in absence of recovery of a ticket from his body. Conflicting
decisions of Andhra Pradesh High Court in Agam Shanthamma
v. Union of India, (2004) 1 ACJ 713; Kerala High Court in
Union of India v. Leelamma, 2009 (1) KLT 914; Bombay
High Court (Nagpur Bench) in Union of India v. Surekha,
(2011) ACJ 1845; Ramdhan v. Union of India, (2009) ACJ
2487; & Union of India v. Nandabai, (2016) ACJ 411;
Calcutta High Court in Asharani Das v. Union of India, 2009
(2) CalLT 467; and Madhya Pradesh High Court in Raj
Kumari v. Union of India, (1993) ACJ 846 are required to be
resolved on this subject.
(iii) The concept of self inflicted injury: Whether attempt
of getting into or getting down a moving train resulting in an
accident was a case of ‘self inflicted injury’ so as not to entitle
to any compensation or no such concept could not apply under
the scheme of law which casts strict liability to pay
compensation by the Railway under Sections 124 and 124A. In
this regard views of the High Courts of Kerala in Joseph PT v.
Union of India, AIR 2014 Kerala (12), Bombay in Pushpa v.
Union of India, (2017) III ACC 799 (Bom) and Delhi in
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Shayam Narayan v. Union of India, (2018) ACJ 702, may
appear to be against the decisions of this Court in Union of
India v. Prabhakaran Vijaya Kumar, 2008(3) RCR (Civil)
577 : (2008) 9 SCC 527 and Jameela v. Union of India,
2010(4) RCR (Civil) 362 : (2010) 12 SCC 443.
(iv) Award of interest. The Act is silent about the interest.
In ThazhathePurayil Sarabi v. Union of India, (2010) 1
TAC 420 SC, this Court held that the CPC could be invoked
and interest awarded at the rate of 6% p.a. from the date of
application till the date of award and 9% p.a. interest from the
date of award till the date of payment. In Mohamadi v. Union
of India, 2011(4) RCR (Civil) 692 : (2011) ACJ 2356, interest
at the rate of 9% was awarded without any difference between
the date of application and date of award or for subsequent
award.”
12. Deciding the reference, in the case of Union of India vs. Rina
Devi, (2019) 3 SCC 572, the Apex Court framed the following four issues:
“15. We now proceed to deal with the following issues
seriatim:
(i) Whether the quantum of compensation should be as
per the prescribed rate of compensation as on the
date of application/incident or on the date of order
awarding compensation;
(ii) Whether principle of strict liability applies;
(iii) Whether presence of a body near the railway track
is enough to maintain a claim.
(iv) Rate of interest.”
13. The aforesaid issues have been answered as under:
19. Accordingly, we conclude that compensation will be
payable as applicable on the date of the accident with interest
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pattern as in accident claim cases. If the amount so calculated
is less than the amount prescribed as on the date of the award
of the Tribunal, the claimant will be entitled to higher of the
two amounts. This order will not affect the awards which have
already become final and where limitation for challenging such
awards has expired, this order will not by itself be a ground for
condonation of delay. Seeming conflict in Rathi Menon [Rathi
Menon v. Union of India, (2001) 3 SCC 714, para 30 : 2001
SCC (Cri) 1311] and Kalandi Charan Sahoo [Kalandi Charan
Sahoo v. South-East Central Railways, (2019) 12 SCC 387 :
2017 SCC OnLine SC 1638] stands explained accordingly. The
four-Judge Bench judgment in Pratap Narain Singh Deo
[Pratap Narain Singh Deo v. Srinivas Sabata, (1976) 1 SCC
289 : 1976 SCC (L&S) 52] holds the field on the subject and
squarely applies to the present situation. Compensation as
applicable on the date of the accident has to be given with
reasonable interest and to give effect to the mandate of
beneficial legislation, if compensation as provided on the date
of award of the Tribunal is higher than unrevised amount with
interest, the higher of the two amounts has to be given.
25. 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 the
judgment of this Court in United India Insurance Co. Ltd. v.
Sunil Kumar [United India Insurance Co. Ltd. v. Sunil Kumar,
(2019) 12 SCC 398 : 2017 SCC OnLine SC 1443 : (2017) 13
Scale 652] laying down that plea of negligence of the victim
cannot be allowed in claim based on “no fault theory” under
Section 163-A of the Motor Vehicles Act, 1988. Accordingly,
we hold that death or injury in the course of boarding or de-
boarding a train will be an “untoward incident” entitling a
victim to the compensation and will not fall under the proviso
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to Section 124-A merely on the plea of negligence of the victim
as a contributing factor.
29. We thus hold that mere presence of a body on the
railway premises will not be conclusive to hold that 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.
Re: (iv) Rate of interest
30. As already observed, though this Court in
ThazhathePurayil Sarabi [ThazhathePurayil Sarabi v. Union of
India, (2009) 7 SCC 372 : (2009) 3 SCC (Civ) 133 : (2009) 3
SCC (Cri) 408 : 2010 TAC 420] held that rate of interest has to
be @ 6% from the date of application till the date of the award
and 9% thereafter and 9% rate of interest was awarded from
the date of application in Mohamadi [Mohamadi v. Union of
India, (2019) 12 SCC 389 : 2010 SCC OnLine SC 19] , rate of
interest has to be reasonable rate on a par with accident claim
cases. We are of the view that in absence of any specific
statutory provision, interest can be awarded from the date of
accident itself when the liability of the Railways arises up to
the date of payment, without any difference in the stages. Legal
position in this regard is on a par with the cases of accident
claims under the Motor Vehicles Act, 1988. Conflicting views
stand resolved in this manner.
14. The test laid down in Rina Devi’s case (supra) stands reiterated
by Supreme Court in the case of Doli Rani Saha vs. Union of India, Civil
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Appeal No.8605 of 2024 (Arising out of SLP (C) No.32962 of 2018)
observing as under :
“13. …..In Rina Devi (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 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:
“29. We thus hold that mere presence of a body on the
railway premises will not be conclusive to hold that
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.”
(emphasis supplied)
14. In the present case, the appellant had duly filed an
affidavit stating the facts and adverting to the report
arising from the investigation conducted by the
respondent, which showed that the deceased was
travelling on the train and that his death was caused by
a fall during the course of his travel. The burden of
proof then shifted to the Railways, which has not
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discharged its burden. Therefore, the presumption that
the deceased was a bona fide passenger on the train in
question was not rebutted.
xxxx
18. The decision in Rina Devi (supra) holds as follows
on the aspect of compensation:
“19. Accordingly, we conclude that
compensation will be payable as applicable on
the date of the accident with interest as may be
considered reasonable from time to time on the
same pattern as in accident claim cases. If the
amount so calculated is less than the amount
prescribed as on the date of the award of the
Tribunal, the claimant will be entitled to higher
of the two amounts. This order will not affect
the awards which have already become final and
where limitation for challenging such awards
has expired, this order will not by itself be a
ground for condonation of delay. Seeming
conflict in Rathi Menon [Rathi Menon v. Union
of India, (2001) 3 SCC 714, para 30 : 2001 SCC
(Cri) 1311] and Kalandi Charan Sahoo [Kalandi
Charan Sahoo v. South-East Central Railways,
(2019) 12 SCC 387 : 2017 SCC OnLine SC
1638] stands explained accordingly. The four-
Judge Bench judgment in Pratap Narain Singh
Deo [Pratap Narain Singh Deo v. Srinivas
Sabata, (1976) 1 SCC 289 : 1976 SCC (L&S)
52] holds the field on the subject and squarely
applies to the present situation. Compensation
as applicable on the date of the accident has to
be given with reasonable interest and to give
effect to the mandate of beneficial legislation, if
compensation as provided on the date of award
of the Tribunal is higher than unrevised amount
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with interest, the higher of the two amounts has
to be given.”
The decision in Rina Devi (supra) has subsequently
been followed in Union of India v. Radha Yadav
(2019) 3 SCC 410 and in Kamukayi and others v.
Union of India and Others 2023 SCC Online SC 642.
19. In Rina Devi (supra), this Court held that the
claimant would be entitled to interest from the date of
the accident and, in case the amount so calculated is
less than the amount prescribed as on the date of the
grant of compensation, the claimant would be entitled
to the higher of the two amounts. The principle which
has been laid down in Rina Devi (supra) serves a
salutary purpose. This was noticed in the decision in
Radha Yadav (supra) where it was observed that “the
idea is to afford the benefit of the amendment, to the
extent possible”.
15. In view of above, the following proposition can be culled:
(i) Railway is liable to pay to an injured passenger or to the
dependants of a passenger killed in an untoward incident
involving railways. The passenger for the purpose of
Chapter XIII of the Railways Act does not necessarily
mean a passenger as contemplated under Section 2(29) of
the 1989 Act. Rather explanation appended to Section
124A provides that the passenger shall include:
a) a railway servant on duty;
b) a person who has purchased a valid ticket for
travelling by a train carrying passengers on any date;
or
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c) a valid platform ticket and becomes a victim of an
untoward incident.
The definition is inclusive. It does not exclude any
category. Definition of ‘passenger’ as appended to
Section 124A by explanation is much wider than the
definition of ‘passenger’ as provided under Section 2(29)
of the 1989 Act.
(ii) As per the dictum of law laid down in Rina Devi’s case
(supra), once affidavit is filed by the claimant that the
victim was travelling on a valid ticket, the initial burden to
prove that the victim was a bona fide passenger stands
discharged. Thereafter, it is for the Railways to rebut the
same to prove otherwise.
(iii) Untoward incident is different from accident. ‘Untoward
incident’ is defined under Section 123(c) of the 1989 Act.
Under five situations as contemplated under proviso
appended to Section 124A, the Railway Administration
may be absolved of its liability. Any other situation that
does not fall within the ambit of proviso appended to
Section 124-A, invites liability of Railway Administration
to pay compensation. The compensation needs to be paid
as per the mandate of statute as interpreted by Supreme
Court in Rina Devi’s case (supra).
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(iv) The liability of the Railway Administration is based on the
‘principle of strict liability’. Plea of ‘no fault of railways’
or ‘negligence of the victim’ is not available to the
Railway Administration.
16. In the present case, counsel representing Union of India is not in
a position to dispute that the claimants/appellants filed affidavit testifying
purchase of the ticket by the deceased.. Thus, the initial onus in terms of law
laid down by the Supreme Court in Rina Devi (supra) stands discharged. It
was thereafter for the railways to prove that the deceased was not a bonafide
passenger. No evidence was led by railways to rebut the evidence of the
applicant.
17. The deceased accidentally fell down from a moving train. The
said situation does not fall within the exceptions as carved out in the proviso
appended to Section 124A of the Act. There is no evidence or plea that there
was any intentional act on part of the deceased to take his life thus the
aforesaid issue also stands covered by the ratio of law laid down in Rina
Devi (supra).
18. In view of above, the findings recorded by the Tribunal cannot
be sustained being in teeth of the ratio of law laid down by the Supreme
Court in the case of Rina Devi (supra).
19. In view of above, present appeal is allowed. Applicant is held to
be entitled to compensation on account of death due to untoward incident
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relating to railways as per schedule appended to the Railway Accidents and
Untoward Incidents (Compensation) Rules, 1990 as applicable on the date of
the accident along with interest @ 9% per annum payable for the period
from the date of application till the date of actual realization.
November 14, 2024 (Pankaj Jain)
Dpr Judge
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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