Full Judgment Text
2024:BHC-NAG:5722
-1- 901.FA.49.2024.Judgment.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO. 49 OF 2024
APPELLANTS : 1. Smt. Nilamdevi wd/o. Ajay Ram, Aged
30 years, Occ. Household.
2. Rajnish Ranjan S/o. Ajay Ram, Aged
10 years, Occ. Education.
3. Kritika Kumari D/o. Ajay Ram, Aged
7 years, Occ. Nil.
4. Ritika Kumari D/o. Ajay Ram, Aged 6
years, Occ. Nil.
Appellant Nos.2 to 4 are minors,
under guardianship of mother Smt.
Nilamdevi wd/o. Ajay Ram i.e.
Appellant No.1.
5. Shambhu Ram S/o. Ganeshi Ram,
Aged 66 years, Occ. Nil.
6. Kusumdevi W/o. Shambhu Ram,
Aged 51 years, Occ. Household.
All R/o. Gram Narullahpur, Post
Office Kabirpur, Panapur Haveli, Dist.
Muzaffarpur Kanti, Bihar – 843109.
//VERSUS//
RESPONDENT : Union of India, through General
Manager, Central Railway, C.S.T.
Mumbai
-2- 901.FA.49.2024.Judgment.odt
Mr. D.S. Lambat, Advocate for the Appellants.
Ms. A.S. Athalye, Advocate for the Respondent.
CORAM : G. A. SANAP, J.
th
DATED : 19 MARCH , 2024.
ORAL JUDGMENT
. In this appeal, filed under Section 23 of the Railway
Claims Tribunal Act, 1987 (for short, “the Act of 1987”),
th
challenge is to the judgment and order dated 25 October, 2023,
passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur,
whereby the claim filed by the appellants/claimants came to be
dismissed.
02] BACKGROUND FACTS:
Appellant No.1 is the wife of the deceased Ajay Kumar;
appellant Nos.2 to 4 are the children of the deceased; and appellant
th
Nos.5 and 6 are the parents of the deceased. On 12 July, 2019, the
deceased was travelling by Antyodaya Express. He had purchased a
journey ticket at Manmad Railway Station and boarded the said
train to go to Chhapra. It is stated that when the train came at
Shirsoli Railway Station at midnight, the deceased, due to a sudden
jerk, fell from the moving train. He sustained injuries and died.
-3- 901.FA.49.2024.Judgment.odt
The journey ticket was recovered. He was a bona fide passenger. It
is stated that the death was in an untoward incident.
03] The respondent-Railway filed the written statement and
opposed the claim. It was contended that the deceased was not a
bona fide passenger travelling with a valid journey ticket.
According to the railway, the Antyodaya Express was stopped at
Shirsoli Railway Station to give precedence to Duronto Express
coming from the opposite direction. The deceased got down from
the train and was moving on the railway track. The Loco Pilot of
the Duronto Express blew horn to alert the deceased; however, he
did not pay any heed. He was dashed by the Duronto Express and
died due to the injuries sustained by him. It is stated that the
injuries sustained by the deceased were self-inflicted injuries due to
his negligent act.
04] The appellants examined three witnesses. The railway
also examined three witnesses. Learned Members of the Tribunal,
on appreciation of the evidence, found that there was no substance
in the claim and dismissed the claim. The appellants, being
aggrieved by this judgment and order, are before this Court in
appeal.
-4- 901.FA.49.2024.Judgment.odt
05] I have heard Mr. D.S. Lambat, learned advocate for the
appellants and Ms. A.S. Athalye, learned advocate for the
respondent-Railway. Perused the record and proceedings.
06] The following points fall for my determination:
(a)Whether the deceased was a bona fide passenger travelling
with a valid journey ticket at the time of the incident?
(b) Whether the deceased died in an untoward incident as
understood by Section 123(c)(2) of the Railways Act, 1989
(for short, “the Act of 1989”)?
07] Learned advocate for the appellants submitted that the
deceased was travelling with a valid journey ticket and the ticket was
found at the time of panchanama. Learned advocate submitted that
learned Members of the Tribunal have failed to consider this
evidence. Learned advocate further submitted that the Antyodaya
Express was stopped at Shirsoli Railway Station to give precedence
to Duronto Express. Learned advocate submitted that the incident
occurred in the night time and therefore, the contention of the
Railway that the deceased got down from off side at the railway
station and was dashed by Duranto Express, cannot be accepted.
-5- 901.FA.49.2024.Judgment.odt
Learned advocate submitted that AW-2, who was a co-passenger
with the deceased, has categorically stated that the deceased, due to a
sudden jerk, fell down and sustained the injuries. Learned advocate
submitted that the evidence of the Loco Pilot of Duronto Express
cannot be believed because if the deceased was dashed by the
Duronto Express running at a speed of 80 km. per hour, then he
would have been thrown away at some distance towards Antyodaya
Express. Learned advocate submitted that the dead body was lying
by the side of the track on which Duronto Express had passed.
Learned advocate submitted that the possibility of the deceased
falling down on the track when Duronto Express was passing
through the station, cannot be ruled out. Learned advocate
submitted that in this case, the first part of Section 124A of the Act
of 1989 would be applicable and not the proviso.
08] Learned advocate for the respondent-Railway submitted
that there is no reason to discard and disbelieve the evidence of the
Loco Pilot of Duronto Express. Learned advocate submitted that the
evidence of AW-2, co-passenger with the deceased, cannot be
believed because he had not witnessed the incident. Learned
-6- 901.FA.49.2024.Judgment.odt
advocate further submitted that the act of the deceased getting down
from the offside of the train and walking on the railway line was
nothing short of an attempt to commit suicide. Learned advocate, in
short, supported the judgment and order passed by the Tribunal.
09] I have gone through the record and proceedings. The
journey ticket found at the time of the inquest panchanama is part of
the record. The deceased was travelling from Manmad to Chhapra
by the Antyodaya Express. The deceased was, therefore, a bona fide
passenger, travelling with a valid journey ticket.
10] The important question is as to whether the death was in
an untoward incident or whether it would be covered under the
proviso to Section 124A of the Act of 1989. In my view, for the
purpose of appreciation of the evidence of the Loco Pilot, perusal of
the evidence of the Station Master, RW-3, would be necessary. He
has stated that the Antyodaya Express was stopped for want of line
clearance at 22.57 hrs. and for giving precedence to the Duronto
Express, i.e., Train No.12293. He has stated that the Duronto
Express passed through Shirsoli Railway Station at 23:06 hrs. from
-7- 901.FA.49.2024.Judgment.odt
the main line. He has further stated that the Antyodaya Express
departed at 23:17 hrs. It is, therefore, apparent that within 7 to 8
minutes of the halting of the Antyodaya Express, the Duronto
Express passed through the main line. As per the case of the railway,
the deceased had deboarded the train from the offside and came on
the railway line, and despite blowing the horn, he did not leave the
track and, therefore, he was dashed by Duranto Express. It is to be
noted that it was midnight. On the other side of the Antyodaya
Express, there was a platform. In the ordinary circumstances, the
deceased would not have deboarded the train, which had no
scheduled halt at Shirsoli Railway Station, from the offside. The case
put forth by the railway is not, therefore, probable.
11] The Antyodaya Express had no scheduled halt at Shirsoli
Railway Station. It was halted to give passage/pass over to Duronto
Express. Within 6 to 7 minutes, the Duronto Express passed
through the Shirsoli Railway Station. RW-3, Station Master at Sirsoli
Railway Station, in his evidence, has not stated a word about the
precaution taken by him to avoid such incidents. He has not stated
that any warning was given to the passengers or any announcement
-8- 901.FA.49.2024.Judgment.odt
was made about the unscheduled halt of the train at Shirsoli Railway
Station. He has also not stated that the passengers were informed
about the approximate time required for departure of the train.
Similarly, he has not stated that the passengers were informed by
making an announcement that the Duronto Express was coming
from the opposite direction and passing through Shirsoli Railway
Station at a high speed. After the departure of the Duronto Express,
the Antyodaya Express was given a signal to depart. It is the duty of
the railway to take proper precaution in such situations. The
deceased otherwise had no reason to get down at the Shirsoli
Railway Station. Even if the train had halted at such a station, he
would have deboarded on the platform. Therefore, on this count
also, the case of the railway cannot be accepted.
12] In my view, in the above factual background, the evidence
of the Loco Pilot of Duronto Express deserves appreciation. AW-2 is
the co-passenger, travelling with the deceased. He has stated that the
deceased was travelling with him. He has stated that the deceased,
due to a sudden jerk to the train, fell down and sustained injuries in
the incident. He has stated that as soon as the deceased fell from the
-9- 901.FA.49.2024.Judgment.odt
train, Duranto Express came from the opposite direction and gave
dash to the deceased. RW-2, the Loco Pilot of Durant Express, has
stated that the passenger was talking on his mobile phone or taking a
selfie. In my view, this statement of the Loco Pilot cannot be
accepted. If the deceased wanted to get down at Shirsoli Railway
Station, then he would have deboarded on the platform and not
from the offside. The dead body was lying between two tracks. If the
deceased was dashed by the Duronto Express, as stated, then he
would have been thrown away, most probably towards Antyodaya
Express. It is seen that the dead body was lying near the main track
through which Duronto Express passed through. This fact,
therefore, clearly suggests that after falling from the train, the
deceased might have been dashed by Duranto Express and therefore,
the deceased was lying between two railway lines. The evidence on
record and the time of the incident clearly suggest that the deceased
had no reason to get down from the offside at Shirsoli Railway
Station. The deceased was proceeding to Chhapra. The Antyodaya
Express had no scheduled halt at Shirsoli Railway Station. The
deceased, therefore, would not have taken the risk to get down from
the train from the offside. In my view, learned Members of the
-10- 901.FA.49.2024.Judgment.odt
Tribunal have failed to properly appreciate the evidence on record.
13] The deceased was admittedly not run over by the Duronto
Express. This fact suggests that the deceased was not standing on the
railway track. It appears to be the case of the Railway that while
taking selfie on the side of Antyoday Express, he was dashed by
Duranto Express. In my view, the contention of the Railway that
the deceased was taking selfie, cannot be accepted. The railway
administration was responsible for this lapse. Whenever the train is
halted at a railway station where it has no scheduled halt, the
necessary precaution is required to be taken. Such precaution is
necessary during night. The incident occurred at midnight.
Therefore, in my view, this case would fall under the first part of
Section 124A of the Act of 1989. The case would not fall under the
proviso to Section 124A of the Act of 1989. It is the case of the
railway that the deceased was negligent and, therefore, the incident
occurred. In my view, such defence will not be available to the
railway. The railway cannot be held liable to pay compensation if the
case is covered under the proviso to Section 124A of the Act of
1989. The Hon’ble Apex Court in the case of Union of India Vs.
-11- 901.FA.49.2024.Judgment.odt
Rina Devi [AIR 2018 SC 2362] has considered this issue. Paragraph
16.6 would be relevant for the purpose of addressing this issue. It is
extracted below:
“16.6. 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 judgment of this Court in United India Insurance Co.
Ltd. v. Sunil Kumar [AIR 2017 SC 5710] laying down that
plea of negligence of the victim cannot be allowed in claim
based on ‘no fault theory’ under Section 163A 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 to Section 124A merely on the
plea of negligence of the victim as a contributing factor.”
14] In view of the law laid down by the Hon’ble Apex Court,
the defence of negligence is not available, inasmuch as the liability is
based on ‘no fault theory’. It is further held that for causing self-
inflicted injury, intention would be required. It is held that mere
negligence is not sufficient to reject the claim. It is held that death or
injury in the course of boarding or deboarding a train will be an
‘untoward incident’ entitling a victim to compensation and will not
-12- 901.FA.49.2024.Judgment.odt
fall under the proviso to Section 124A merely on the plea of
negligence of the victim as a contributing factor.
15] In this case, the evidence on record is sufficient to
establish that the deceased fell from the train and sustained injuries.
As per Section 123(c)(2) of the Act of 1989, the accidental falling of
any passenger from a train carrying passengers falls within the ambit
of an ‘untoward incident’. Admittedly, the Railway has not adduced
any evidence to prove that on account of unscheduled stoppage of
the train at Shirsoli Railway Station, any care or precaution was
taken. The passengers travelling by the said train were not informed
about the reasons for unscheduled stoppage and the time taken for
departure. The deceased otherwise had no reason to get down from
the train. Ordinarily, in case of unscheduled stoppage of a train, the
passengers may not de-board the train. Even if some passengers
de-board the train, they would de-board on the platform side.
Failure to take care and precaution in such a situation is a serious
lapse on the part of the Railway. In my view, occurrence of such an
incident on account of failure of the Railway Administration to take
proper care and precaution, will go against the Railway. The death
-13- 901.FA.49.2024.Judgment.odt
or injury in such an incident would, therefore, fall within the
definition of an ‘untoward incident’. In this case, the deceased was
travelling by train to Chhapra. He was not either crossing the railway
line or roaming at the railway station. The death of a passenger due
to the injuries sustained in this manner would fall within the
definition of an ‘untoward incident’. Therefore, I conclude that
learned Members of the Tribunal were not right in rejecting the
claim. As such, I record my findings on both the points in the
affirmative. Hence, the following order is passed:
a) The appeal is allowed.
th
b) The judgment and order dated 25 October, 2023, passed
by the Railway Claims Tribunal, Nagpur Bench, Nagpur
in Claim Application No.OA(IIu)/NGP/16/2020 is set
aside. The claim application is allowed.
c) The respondent-Railway is directed to pay compensation
of Rs.8,00,000/- (Rupees Eight Lakhs Only) to the
appellants. The respondent-Railway is also directed to pay
interest @ 6% per annum from the date of the incident
till realization of the amount.
-14- 901.FA.49.2024.Judgment.odt
d) The amount of compensation be deposited within four
months from the date of uploading of this judgment.
e) The amount of compensation be deposited directly in the
bank accounts of the appellants. The appellants are
directed to provide their bank account details to the
respondent-Railway.
f) Out of total compensation, 50% shall be paid to appellant
No.1; 30% shall be paid together to appellant Nos.2, 3
and 4; and balance 20% shall be paid together to appellant
Nos.5 and 6.
16] The First Appeal stands disposed of in the aforesaid terms.
No order as to costs. Pending applications, if any, stand disposed of.
(G. A. SANAP, J.)
Vijay
Signed by: Mr. Vijay Kumar
Designation: PA To Honourable Judge
Date: 15/05/2024 12:35:25
-1- 901.FA.49.2024.Judgment.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO. 49 OF 2024
APPELLANTS : 1. Smt. Nilamdevi wd/o. Ajay Ram, Aged
30 years, Occ. Household.
2. Rajnish Ranjan S/o. Ajay Ram, Aged
10 years, Occ. Education.
3. Kritika Kumari D/o. Ajay Ram, Aged
7 years, Occ. Nil.
4. Ritika Kumari D/o. Ajay Ram, Aged 6
years, Occ. Nil.
Appellant Nos.2 to 4 are minors,
under guardianship of mother Smt.
Nilamdevi wd/o. Ajay Ram i.e.
Appellant No.1.
5. Shambhu Ram S/o. Ganeshi Ram,
Aged 66 years, Occ. Nil.
6. Kusumdevi W/o. Shambhu Ram,
Aged 51 years, Occ. Household.
All R/o. Gram Narullahpur, Post
Office Kabirpur, Panapur Haveli, Dist.
Muzaffarpur Kanti, Bihar – 843109.
//VERSUS//
RESPONDENT : Union of India, through General
Manager, Central Railway, C.S.T.
Mumbai
-2- 901.FA.49.2024.Judgment.odt
Mr. D.S. Lambat, Advocate for the Appellants.
Ms. A.S. Athalye, Advocate for the Respondent.
CORAM : G. A. SANAP, J.
th
DATED : 19 MARCH , 2024.
ORAL JUDGMENT
. In this appeal, filed under Section 23 of the Railway
Claims Tribunal Act, 1987 (for short, “the Act of 1987”),
th
challenge is to the judgment and order dated 25 October, 2023,
passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur,
whereby the claim filed by the appellants/claimants came to be
dismissed.
02] BACKGROUND FACTS:
Appellant No.1 is the wife of the deceased Ajay Kumar;
appellant Nos.2 to 4 are the children of the deceased; and appellant
th
Nos.5 and 6 are the parents of the deceased. On 12 July, 2019, the
deceased was travelling by Antyodaya Express. He had purchased a
journey ticket at Manmad Railway Station and boarded the said
train to go to Chhapra. It is stated that when the train came at
Shirsoli Railway Station at midnight, the deceased, due to a sudden
jerk, fell from the moving train. He sustained injuries and died.
-3- 901.FA.49.2024.Judgment.odt
The journey ticket was recovered. He was a bona fide passenger. It
is stated that the death was in an untoward incident.
03] The respondent-Railway filed the written statement and
opposed the claim. It was contended that the deceased was not a
bona fide passenger travelling with a valid journey ticket.
According to the railway, the Antyodaya Express was stopped at
Shirsoli Railway Station to give precedence to Duronto Express
coming from the opposite direction. The deceased got down from
the train and was moving on the railway track. The Loco Pilot of
the Duronto Express blew horn to alert the deceased; however, he
did not pay any heed. He was dashed by the Duronto Express and
died due to the injuries sustained by him. It is stated that the
injuries sustained by the deceased were self-inflicted injuries due to
his negligent act.
04] The appellants examined three witnesses. The railway
also examined three witnesses. Learned Members of the Tribunal,
on appreciation of the evidence, found that there was no substance
in the claim and dismissed the claim. The appellants, being
aggrieved by this judgment and order, are before this Court in
appeal.
-4- 901.FA.49.2024.Judgment.odt
05] I have heard Mr. D.S. Lambat, learned advocate for the
appellants and Ms. A.S. Athalye, learned advocate for the
respondent-Railway. Perused the record and proceedings.
06] The following points fall for my determination:
(a)Whether the deceased was a bona fide passenger travelling
with a valid journey ticket at the time of the incident?
(b) Whether the deceased died in an untoward incident as
understood by Section 123(c)(2) of the Railways Act, 1989
(for short, “the Act of 1989”)?
07] Learned advocate for the appellants submitted that the
deceased was travelling with a valid journey ticket and the ticket was
found at the time of panchanama. Learned advocate submitted that
learned Members of the Tribunal have failed to consider this
evidence. Learned advocate further submitted that the Antyodaya
Express was stopped at Shirsoli Railway Station to give precedence
to Duronto Express. Learned advocate submitted that the incident
occurred in the night time and therefore, the contention of the
Railway that the deceased got down from off side at the railway
station and was dashed by Duranto Express, cannot be accepted.
-5- 901.FA.49.2024.Judgment.odt
Learned advocate submitted that AW-2, who was a co-passenger
with the deceased, has categorically stated that the deceased, due to a
sudden jerk, fell down and sustained the injuries. Learned advocate
submitted that the evidence of the Loco Pilot of Duronto Express
cannot be believed because if the deceased was dashed by the
Duronto Express running at a speed of 80 km. per hour, then he
would have been thrown away at some distance towards Antyodaya
Express. Learned advocate submitted that the dead body was lying
by the side of the track on which Duronto Express had passed.
Learned advocate submitted that the possibility of the deceased
falling down on the track when Duronto Express was passing
through the station, cannot be ruled out. Learned advocate
submitted that in this case, the first part of Section 124A of the Act
of 1989 would be applicable and not the proviso.
08] Learned advocate for the respondent-Railway submitted
that there is no reason to discard and disbelieve the evidence of the
Loco Pilot of Duronto Express. Learned advocate submitted that the
evidence of AW-2, co-passenger with the deceased, cannot be
believed because he had not witnessed the incident. Learned
-6- 901.FA.49.2024.Judgment.odt
advocate further submitted that the act of the deceased getting down
from the offside of the train and walking on the railway line was
nothing short of an attempt to commit suicide. Learned advocate, in
short, supported the judgment and order passed by the Tribunal.
09] I have gone through the record and proceedings. The
journey ticket found at the time of the inquest panchanama is part of
the record. The deceased was travelling from Manmad to Chhapra
by the Antyodaya Express. The deceased was, therefore, a bona fide
passenger, travelling with a valid journey ticket.
10] The important question is as to whether the death was in
an untoward incident or whether it would be covered under the
proviso to Section 124A of the Act of 1989. In my view, for the
purpose of appreciation of the evidence of the Loco Pilot, perusal of
the evidence of the Station Master, RW-3, would be necessary. He
has stated that the Antyodaya Express was stopped for want of line
clearance at 22.57 hrs. and for giving precedence to the Duronto
Express, i.e., Train No.12293. He has stated that the Duronto
Express passed through Shirsoli Railway Station at 23:06 hrs. from
-7- 901.FA.49.2024.Judgment.odt
the main line. He has further stated that the Antyodaya Express
departed at 23:17 hrs. It is, therefore, apparent that within 7 to 8
minutes of the halting of the Antyodaya Express, the Duronto
Express passed through the main line. As per the case of the railway,
the deceased had deboarded the train from the offside and came on
the railway line, and despite blowing the horn, he did not leave the
track and, therefore, he was dashed by Duranto Express. It is to be
noted that it was midnight. On the other side of the Antyodaya
Express, there was a platform. In the ordinary circumstances, the
deceased would not have deboarded the train, which had no
scheduled halt at Shirsoli Railway Station, from the offside. The case
put forth by the railway is not, therefore, probable.
11] The Antyodaya Express had no scheduled halt at Shirsoli
Railway Station. It was halted to give passage/pass over to Duronto
Express. Within 6 to 7 minutes, the Duronto Express passed
through the Shirsoli Railway Station. RW-3, Station Master at Sirsoli
Railway Station, in his evidence, has not stated a word about the
precaution taken by him to avoid such incidents. He has not stated
that any warning was given to the passengers or any announcement
-8- 901.FA.49.2024.Judgment.odt
was made about the unscheduled halt of the train at Shirsoli Railway
Station. He has also not stated that the passengers were informed
about the approximate time required for departure of the train.
Similarly, he has not stated that the passengers were informed by
making an announcement that the Duronto Express was coming
from the opposite direction and passing through Shirsoli Railway
Station at a high speed. After the departure of the Duronto Express,
the Antyodaya Express was given a signal to depart. It is the duty of
the railway to take proper precaution in such situations. The
deceased otherwise had no reason to get down at the Shirsoli
Railway Station. Even if the train had halted at such a station, he
would have deboarded on the platform. Therefore, on this count
also, the case of the railway cannot be accepted.
12] In my view, in the above factual background, the evidence
of the Loco Pilot of Duronto Express deserves appreciation. AW-2 is
the co-passenger, travelling with the deceased. He has stated that the
deceased was travelling with him. He has stated that the deceased,
due to a sudden jerk to the train, fell down and sustained injuries in
the incident. He has stated that as soon as the deceased fell from the
-9- 901.FA.49.2024.Judgment.odt
train, Duranto Express came from the opposite direction and gave
dash to the deceased. RW-2, the Loco Pilot of Durant Express, has
stated that the passenger was talking on his mobile phone or taking a
selfie. In my view, this statement of the Loco Pilot cannot be
accepted. If the deceased wanted to get down at Shirsoli Railway
Station, then he would have deboarded on the platform and not
from the offside. The dead body was lying between two tracks. If the
deceased was dashed by the Duronto Express, as stated, then he
would have been thrown away, most probably towards Antyodaya
Express. It is seen that the dead body was lying near the main track
through which Duronto Express passed through. This fact,
therefore, clearly suggests that after falling from the train, the
deceased might have been dashed by Duranto Express and therefore,
the deceased was lying between two railway lines. The evidence on
record and the time of the incident clearly suggest that the deceased
had no reason to get down from the offside at Shirsoli Railway
Station. The deceased was proceeding to Chhapra. The Antyodaya
Express had no scheduled halt at Shirsoli Railway Station. The
deceased, therefore, would not have taken the risk to get down from
the train from the offside. In my view, learned Members of the
-10- 901.FA.49.2024.Judgment.odt
Tribunal have failed to properly appreciate the evidence on record.
13] The deceased was admittedly not run over by the Duronto
Express. This fact suggests that the deceased was not standing on the
railway track. It appears to be the case of the Railway that while
taking selfie on the side of Antyoday Express, he was dashed by
Duranto Express. In my view, the contention of the Railway that
the deceased was taking selfie, cannot be accepted. The railway
administration was responsible for this lapse. Whenever the train is
halted at a railway station where it has no scheduled halt, the
necessary precaution is required to be taken. Such precaution is
necessary during night. The incident occurred at midnight.
Therefore, in my view, this case would fall under the first part of
Section 124A of the Act of 1989. The case would not fall under the
proviso to Section 124A of the Act of 1989. It is the case of the
railway that the deceased was negligent and, therefore, the incident
occurred. In my view, such defence will not be available to the
railway. The railway cannot be held liable to pay compensation if the
case is covered under the proviso to Section 124A of the Act of
1989. The Hon’ble Apex Court in the case of Union of India Vs.
-11- 901.FA.49.2024.Judgment.odt
Rina Devi [AIR 2018 SC 2362] has considered this issue. Paragraph
16.6 would be relevant for the purpose of addressing this issue. It is
extracted below:
“16.6. 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 judgment of this Court in United India Insurance Co.
Ltd. v. Sunil Kumar [AIR 2017 SC 5710] laying down that
plea of negligence of the victim cannot be allowed in claim
based on ‘no fault theory’ under Section 163A 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 to Section 124A merely on the
plea of negligence of the victim as a contributing factor.”
14] In view of the law laid down by the Hon’ble Apex Court,
the defence of negligence is not available, inasmuch as the liability is
based on ‘no fault theory’. It is further held that for causing self-
inflicted injury, intention would be required. It is held that mere
negligence is not sufficient to reject the claim. It is held that death or
injury in the course of boarding or deboarding a train will be an
‘untoward incident’ entitling a victim to compensation and will not
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fall under the proviso to Section 124A merely on the plea of
negligence of the victim as a contributing factor.
15] In this case, the evidence on record is sufficient to
establish that the deceased fell from the train and sustained injuries.
As per Section 123(c)(2) of the Act of 1989, the accidental falling of
any passenger from a train carrying passengers falls within the ambit
of an ‘untoward incident’. Admittedly, the Railway has not adduced
any evidence to prove that on account of unscheduled stoppage of
the train at Shirsoli Railway Station, any care or precaution was
taken. The passengers travelling by the said train were not informed
about the reasons for unscheduled stoppage and the time taken for
departure. The deceased otherwise had no reason to get down from
the train. Ordinarily, in case of unscheduled stoppage of a train, the
passengers may not de-board the train. Even if some passengers
de-board the train, they would de-board on the platform side.
Failure to take care and precaution in such a situation is a serious
lapse on the part of the Railway. In my view, occurrence of such an
incident on account of failure of the Railway Administration to take
proper care and precaution, will go against the Railway. The death
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or injury in such an incident would, therefore, fall within the
definition of an ‘untoward incident’. In this case, the deceased was
travelling by train to Chhapra. He was not either crossing the railway
line or roaming at the railway station. The death of a passenger due
to the injuries sustained in this manner would fall within the
definition of an ‘untoward incident’. Therefore, I conclude that
learned Members of the Tribunal were not right in rejecting the
claim. As such, I record my findings on both the points in the
affirmative. Hence, the following order is passed:
a) The appeal is allowed.
th
b) The judgment and order dated 25 October, 2023, passed
by the Railway Claims Tribunal, Nagpur Bench, Nagpur
in Claim Application No.OA(IIu)/NGP/16/2020 is set
aside. The claim application is allowed.
c) The respondent-Railway is directed to pay compensation
of Rs.8,00,000/- (Rupees Eight Lakhs Only) to the
appellants. The respondent-Railway is also directed to pay
interest @ 6% per annum from the date of the incident
till realization of the amount.
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d) The amount of compensation be deposited within four
months from the date of uploading of this judgment.
e) The amount of compensation be deposited directly in the
bank accounts of the appellants. The appellants are
directed to provide their bank account details to the
respondent-Railway.
f) Out of total compensation, 50% shall be paid to appellant
No.1; 30% shall be paid together to appellant Nos.2, 3
and 4; and balance 20% shall be paid together to appellant
Nos.5 and 6.
16] The First Appeal stands disposed of in the aforesaid terms.
No order as to costs. Pending applications, if any, stand disposed of.
(G. A. SANAP, J.)
Vijay
Signed by: Mr. Vijay Kumar
Designation: PA To Honourable Judge
Date: 15/05/2024 12:35:25