Arun Mishra, J.:— This appeal has been preferred under Section 23 of the Railway Claims Tribunal Act, 1987 by the appellant aggrieved by judgment dated 22-3-2002.
2. Late Sanjay Kuraria in an effort to board 1390 Up Allahabad-Itarsi Passenger on 23-5-98 at Sihora Road Station fell down from the train and was run oyer by it, as a result of which he died on the spot. The case was set up by the appellant that late Sanjay Kuraria faced too much difficulty in boarding the train as both sides doors of each compartment were jammed and occupied by firewood loaded by the woodcutters illegally and unauthorizedly as per daily routine and practice. He slipped down while boarding the train at Sihora road.
3. The Railways in the written statement denied that late Shri Sanjay Kuraria fell down from the train, on the contrary as per the record, this is a run over case. Their stand is that case does not fall within the scope of Section 123 of the Railways Act, 1989 (hereinafter referred to as “the Railways Act”) consequently not covered under Section 124-A, hence, the claim petition deserves to be dismissed. It was denied that late Sanjay Kuraria was a victim of “untoward incident”.
4. The learned Claims Tribunal has found that it was not a case of “accidental falling”. Reliance was placed by the Claims Tribunal on decision of Apex Court in Union of India v. Sunil Kumar Ghosh, AIR 1984 SC 1737. It was also found that accident was outcome of own negligence of deceased as the deceased was trying to board the train from off side platform, that is, non-platform side knowing well that bogie was jammed and packed with firewood bundles by woodcutters and it was not possible for him to board the train under these circumstances. Hence, claim petition was dismissed. Consequently, this appeal has been preferred by the claimant/appellant.
5. Ms. P.L Shrivastava, learned counsel appearing for appellant has submitted that it was clearly a case of “untoward incident” as incorporated by way of amendment under Section 124-A read with Section 123(c) of Railways Act. Thus, reliance which has been placed on decision of Apex Court in Union of India v. Sunil Kumar Ghosh (supra) is misconceived as the provision of Section 123(c) and 124-A of the Railways Act have been incorporated subsequently with effect from 1-8-1984, when the Apex Court has rendered the aforesaid decision, the provision of Section 124 was considered, at that time there was no concept of “untoward incident”. It is also submitted by her that all of a sudden train was started with a jerk due to which deceased fell down while he has already boarded the train. It has been further submitted that Railways has not adduced any evidence to make out a case under proviso (a) to (e) of Section 124-A of Railways Act. Thus, it was clearly an “untoward incident” for which railways be held liable to compensate.
6. Shri Rajneesh Gupta, learned counsel appearing for respondent has supported the award. He has submitted that it was a case of self indicated injury, the deceased ought not to have boarded the train when it was not possible as there were wooden logs in the passage of both sides. He knew the consequences of boarding the train, was unable to get inside, fell down while boarding, that too from the off side platform, that is, non-platform side. It was not permissible to board the train from that side, hence, railways has been rightly exonerated by the Claims Tribunal. He has also placed reliance on the decision of Apex Court in Union of India v. Sunil Kumar Ghosh (supra).
7. Before appreciating the rival submissions, it is apt to note the definition of “untoward incident” incorporated under Section 123(c) of the Railways Act. The definition is quoted below:—
“123(c) “untoward incident” means—
(1)(i) the commission of a terrorist act within the meaning of sub-section (1) of Section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or
(ii) the making of a violent attack or the commission of 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 waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station; or
(2) the accidental falling of any passenger from a train carrying passengers.”
Section 123(c)(2) makes it clear that “accidental falling of any passenger from a train carrying passengers” is an “untoward incident” and compensation is provided for such an “untoward incident” though there may not be any wrongful act, neglect or default on the part of the railway administration which is statutorily enjoined under Section 124-A of the Railways Act. Section 124-A inserted with effect from 1-8-1984 is quoted below:—
“124-A. Compensation on account of untoward incident:— 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:—
Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to—
(a) suicide or attempted suicide by him:
(b) self-inflicted injury;
(c) his own criminal act;
(d) any act committed by him in a state of intoxication or insanity;
(e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident.
Explanation:— For the purposes of this section, “passenger” includes—
(i) a railway servant on duty; and
(ii) a person who has purchased a valid ticket for travelling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.”
In case of accidental falling of any passenger from a train carrying passengers in order to escape the liability, it is necessary for the railways to bring the case by adducing evidence under the proviso (a) to (e) of Section 124-A.
8. Railways owes certain common law duties while dealing in such a hazardous transport system, What are the common law duties have been referred to by this Court in Union Of India… v. Smt. Mulko Bai…., 2002 (1) MPLJ 407 : AIR 2002 MP 22 Railway authorities are under a duty to take reasonable care which lies upon all carriages including the railways, the standard of care is high and strict, there cannot be any dereliction of duty which may result in precious life being lost rendering the guarantee under Article 21 of the Constitution to be illusory. There are certain duties imposed under the statute also. The railways carries an inherently dangerous activity of running express trains and have to use certain care and caution at the station while the trains are stopped for halt and started for further destination, the railways are aware that their activity was likely to cause accidents, unless it was carried with all reasonable care. Liability is based on perilous nature of the operation. The Privy Council in Commissioner for Railways v. Mc. Dermott, (1966) 2 All ER 162 (PC) and Donoghue v. Stevenson, 1932 AC 562 laid down that there is duty cast on the railways to ensure safety of passengers, train should not be started abruptly. They are under a duty to use reasonable care and skill in maintenance of their premises, including their carriages, maintenance of railway tracks, proper system of signalling and carrying on their activities effectively so as to prevent accidents. In Charlesworth and Percy in their Treatise on Negligence 7th Edn. at Page 637 have observed that the railway authorities are bound to provide reasonable means for passengers to alight at the station where their trains stop. If the platform provided is either too high or too low having regard to the height of the carriage, it is evidence of negligence on the part of the railway authorities in not providing reasonable facilities for alighting. Regarding the stopping and starting of trains the author (Charlesworth and Percy) say that trains must be started and stopped with reasonable care. If a train is started with a sudden jerk as a result of which a passenger is injured, there is evidence of negligence. It is further stated that a violent and unusual stopping or starting of the train which occasions injury to a passenger is prima facie evidence of negligence. In such circumstances the railway authorities will have “to show both that they acted reasonably and properly in suddenly stopping the train, and also that the cause which led to the necessity of stopping the train was not brought about by any negligence upon their part.”
9. In Ulahannan Rajan… v. Union Of India…., AIR 1992 Kerala 230 the deceased was getting down from the compartment with child in her hand. That compartment stopped short of platform. No warning or signal was given before the train started. Level of platform was also not raised after converting rail to broad gauge. It was held that the accident was due to negligence on the part of railway servants.
10. In House of Lords in Metropolitan Railway Co. v. Delaney. (1921) All ER Rep 301, a case was considered where a passenger had entered the carriage and had reached the vestibule immediately inside it and was approaching the seating accommodation when the train started suddenly depriving him of his balance and throwing him against the back of the carriage. The questions which arose, whether the train was set suddenly in motion? and secondly, whether it was set in motion without warning? And when it was so found, the negligence could be inferred.
11. In Hare v. British Transport Commission, (1956) 1 All ER 578 when the plaintiff had gone to the railway station to see her husband off, as the train moved off she remained standing close to the train facing the direction in which it was moving and waiving him. After the train had travelled some 60 yards she was struck from behind by the open door of the guard's van. It was held that the defendants were negligent because the door of the guard's van should not have been allowed to remain open while the train travelled so great a distance and the plea of contributory negligence of the claimant was negated.
12. There are certain statutory duties enjoined in the Rules framed under the Indian Railways Act for the guidance of railway servants. Rule 115 provides that the guard in charge of a train shall not give the signal for starting the train from a station at which it has stopped until he has received, permission from the Station Master. The guard shall not give the signal for starting the train until he is satisfied himself that no passenger is getting into or out of the train, that no person is riding outside a carriage. It is the further duty of the driver to start and stop the train carefully without a jerk which is stipulated under Rule 130. Rule 131 of the Rules framed under the Railways Act provides that driver shall always sound the engine whistle, except under special instructions, before putting an engine in motion, when entering a tunnel and at such other times as may be prescribed by special instructions. The non-observance of rules means and gives rise to action in tort. Section 154 of the Railways Act provides that if any person in a rash and negligent manner does any act, or omits to do what he is legally bound to do so, and the act or omission is likely to endanger the safety or any person travelling or being upon any railway, he shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both. The intendment of the Act and the Rules framed thereunder are clear that due care and precaution has to be taken by the railways. It is bound to provide the reasonable facilities and bound to ensure the safety of the passengers while it operates.
13. In Union Of India… v. Sanjay…., 2002 (2) MPLJ 330 in which also train started with a jerk all of a sudden, due to which claimant fell down and train overran him, claimant suffered amputation of his both legs. It was held to be ah “untoward incident” within the meaning of Section 124-A, railway was held liable to pay compensation. Reliance was placed on the decision in Union Of India… v. Smt. Mulko Bai…. (supra).
14. In General Manager, South Central Railway, Secundarabad v. K. Narayana Rao, AIR 2004 Andhra Pradesh 442 there was accidental fall of passenger from train, deceased was travelling with valid ticket, it was held to be an “untoward incident”. It was also held that no material was placed on record by railways to prove that there was negligence on part of deceased and injury was self-inflicted.
15. In Union Of India… v. Hemlata Mudoi…., 2004 (1) ACJ 464 (Gauhati), there was heavy rush in train, passenger fell down from running train resulting in his death, railway contended that deceased was negligent in travelling, however, railway has failed to prove that accident falls in any of the exceptions mentioned in proviso to Section 124-A. It was held liable to pay compensation.
16. Full Bench of Andhra Pradesh High Court in Union of India, South Central Railways v. Kurukundu Balakrishnaiah, 2004 (1) ACJ 529 also considered the case of accidental falling of passenger from a train, the stand of the railway was that it was self-inflicted injury, in the absence of proof being self-inflicted injury, it was held to be an “untoward incident”. It was held that “accidental falling” would include a passenger trying to alight a train, board a train, or any other like action, and hence, they would be covered by “untoward incident” as specified in Section 123(c) of the Act. Similar is the view taken by this Court in Union Of India… v. Smt. Mulko Bai…. and Union Of India… v. Sanjay…. (supra).
17. Coming to the facts of instant case, the evidence has been adduced by claimant, no evidence in rebuttal was adduced by the railways. When we appreciate the evidence on record, we find that Shri Durgesh Nandan, an eye witness, has stated in his cross-examination that immediately after the deceased boarded the train, the train moved with a jerk due to which deceased fell down. He has also stated in Para 3 of his deposition that most of the bogies were jammed and packed with firewood bundles kept by woodcutters. Hence, deceased went to back side of the train to board. In view of aforesaid, it is clear that it is clearly an untoward incident” as contemplated under Section 123(c)(2) read with Section 124-A of Railways Act. Thus, railway cannot escape the liability to make payment of compensation. Deceased was not negligent. On the other hand, it is clear that railways has failed to provide the clear passage to board the train as wooden logs were kept due to which the way was obstructed. It is not a case of negligence on part of deceased who was carrying a valid ticket to travel which is also the finding of the learned Claims Tribunal. Statement is supported by parents of the deceased, namely, Shri Ramesh Kuraria and Smt. Meena Kuraria. The railways has failed to adduce any evidence to show that it was a self-inflicted injury, merely that entry was made from off side of the platform, that is, from the non-platform side, it cannot be said to be negligence of deceased as there was no way to board into the bogies due to wooden logs which used to be kept regularly by woodcutters, it was duty of railways to ensure that no such wooden logs are put in the way just on the doors in routine manner so as to make it impossible to board the train. Train was started all of a sudden with a jerk, it was the reason due to which deceased fell down, it cannot be said that he was negligent in any manner, it cannot be said to be a case of self-inflicted injury” as contended by Shri Rajneesh Gupta, learned counsel appearing for respondent. No evidence was adduced by the respondent to show that it was a case of self-inflicted injury, burden to bring case under Section 124-A Clause (a) to (e) was on railways. Thus, we award compensation of Rs. 4,00,000/- (Rs. Four lacs only) as prescribed in Schedule framed under Rule 3 of the Railway Accidents And Untoward Incidents (Compensation) Rules, 1990. We also award interest at the rate of 6% per annum from the date of application as the rate of interests have gone down substantially though learned counsel on behalf of appellant has prayed for 7.5% interest on the strength of decision in Smt. Bhagyalaxmi v. Union Of India, 2006 ACJ 1559 : AIR 2006 Bom 53 which we decline. Cost of Rs. 2,000/- is also awarded to appellant.
Order accordingly.