Manjit Kaur and Others v. Union of India

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest? VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this first appeal under Section 23 of the Railway Claims Tribunal Act, 1987, is to the impugned order dated 15.11.2010, which has dismissed the claim petition of the appellants/applicants who are the dependants of the deceased Nirmal Singh.

2. The facts of the case are that on 28.4.2010, Sh. Nirmal Singh was travelling from Ludhiana to Delhi in Sachkhand Express. When the train arrived at Subzi Mandi Railway Station, New Delhi there was a sudden jerk 2011:DHC:3517 resulting in him falling down and getting injured. Sh. Nirmal Singh was removed to Hindu Rao Hospital where he succumbed to the injuries on 8.5.2010.

3. The only defence of the respondent in the trial court was that the deceased died on account of his own negligence and therefore there was no ‘untoward incident’ within the meaning of the expression in Section 124-A of the Railways Act, 1989.

4. So far as the fact that the deceased was a bona fide passenger is not disputed because a ticket of travel bearing no.23692396 dated 28.4. 2010 for the journey from Ludhiana to New Delhi was recovered from the deceased and which is cleared from the Jamatalashi Report, Ex.AW1/6. The valid journey ticket with the deceased at the time of the incident shows he was a bonafide passenger and which is also the finding of the Railway Claims Tribunal. The contention of the respondent was however that the train had an unscheduled halt and the deceased died on account of his own negligence in getting down when the train was in motion.

5. In a recent judgment, the Supreme Court in the case of Jameela and others vs. Union of India 2010 ACJ 2453 has observed as under:-

5. We are of the considered view that the High Court gravely erred in holding that the applicants were not entitled to any compensation under section 124-A of the Act, because the deceased had died by falling down from the train because of his own negligence. First, the case of the Railways that the deceased M. Hafeez was standing at the open door of the train compartment in a negligent manner from where he fell down is entirely based on speculation. There is admittedly no eyewitness of the fall of the deceased from the train and, therefore, there is absolutely no evidence to support the case of the Railways that the accident took place in the manner suggested by it. Secondly, even if it were to be assumed that the deceased fell from the train to his death due to his own negligence it will not have any effect on the compensation payable under section 124-A of the Act.

7. It is not denied by the Railways that M. Hafeez fell down from the train and died while travelling on it on a valid ticket. He was, therefore, clearly a ‘passenger’ for the purpose of section 124-A as clarified by the Explanation. It is now to be seen that under section 124-A 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).

9. The manner in which the accident is sought to be reconstructed by the Railways, the deceased was standing at the open door of the train compartment from where he fell down, is called by the Railways itself as negligence. Now negligence of this kind which is not very uncommon of Indian trains is not the same thing as a criminal act mentioned in clause (c) to the proviso to Section 124-A. 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 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 Railways must fail even after assuming everything in its favour.” (Emphasis added)

6. A civil case is decided on balance of probabilities. Whereas the case of the appellants was that the deceased died on account of fall from a sudden jerk from a train, the case of the respondent was that he died while alighting from the train. In my opinion, once the deceased was a bonafide passenger and there was an unscheduled halt at Subzi Mandi Railway Station, on the balance of probabilities a conclusion which needs to be drawn is that the deceased cannot be said to have died on account of a suicide or self-inflicted injury, as is envisaged in the expression as found in Section 124-A of the Railways Act, 1989. The provision of Section 124A of the Railways Act, has been dwelt upon by the Supreme Court in the aforesaid case of Jameela (supra) and it was opined that once a passenger dies falling from a train, merely because the deceased was said to be standing on the open door of the train compartment cannot be said to be negligence falling within Section 124 A of the Railways Act. In fact, the Supreme Court in paras 5 and 9 of the judgment, quoted above, has said that rash act is not a negligent act and cannot be said to be a criminal act falling under Section 124-A of the Railways Act. In my opinion, the facts of the present case are covered within the ratio of the Supreme Court judgment in the case of Jameela (supra).

7. The appeal is therefore accepted. The impugned order dated 15.11.2010 is set aside. The claim petition of the applicants/appellants will stand allowed for a sum of Rs.[4] lacs and which is the fixed statutory compensation in case of death of a passenger. The applicants/appellants will also be entitled to interest at 9% per annum simple from the date of filing of the claim petition before the Railway Claims Tribunal till payment by the respondent to the applicants/appellants. The compensation amount would be equally distributed between all the three applicants/appellants. The appeal stands disposed of accordingly. Trial court record be sent back. JULY 14, 2011 VALMIKI J. MEHTA, J. ib