The Judgment of the Court was delivered by

Dipankar Datta, J.:— A moment's inattentiveness cost Dasarath Yadav his life. While traveling from Burdwan Railway Station to Howrah Railway Station on 2nd October, 2003 in a local train, he peeped his head out of the compartment door to spit and in the process his head collided with a post by the side of the railway track resulting in his accidental fall from such train near Janai Road Railway Station. Dasarath died on the spot leaving behind him the appellant and a minor child as his surviving legal heirs.

2. The appellant having lost her husband approached the Railway Claims Tribunal, Kolkata on 29th September, 2004 with a claim application, numbered as U/752/204 seeking compensation of Rs. 4,00,000/-. The Tribunal framed the following issues for decision:

“1. Whether the deceased was a bona fide Railway Passenger?

2. Whether the deceased fell down from a running train and died thereof and if so, whether this incident is covered as an ‘Untoward incident’ in terms of provision of Section 123 of the Railways Act, 1989?

3. Whether the Applicants, as dependants of the deceased, are entitled to get any compensation, as prayed for?

4. To what other relief, if any, the Applicants are entitled?”

3. In its judgment dated 27 September, 2007, the tribunal answered issue nos. 1 and 2 in favour of the appellant. Issue no. 3 was decided against the appellant, as a sequel whereof she was held not entitled to any relief and consequently the claim applications stood dismissed on contest, without costs.

4. While answering issue no. 3 the tribunal recorded as follows:

“***Therefore, it can be clearly concluded that the deceased of this case was a victim of his own imprudent act like peeping out from the train for the purpose of spitting. Though it has not pleaded in the written reply that the injury sustained by the victim was a self-inflicted injury but it has pleaded that the deceased fell down from the running train due to his own negligence and carelessly without watching the post invited the danger. It can easily be inferred that the Respondent Railway has mean to plead self-inflicted injury. Since the victim was hit by Electric Post, it clearly suggests the carelessness and negligence on the part of the victim. Message are displayed in the Railway premises and in the coaches warning the passengers not to indulge in careless and negligence act, such as, leaning out of the running train etc. Rule 238 of the Railway Coaching Tariff warns passengers against leaning out of the carriage as that practice is dangerous to the passengers themselves. Section 154 of the Railways Act states that if any person in a rash and negligent manner does any act and the act is likely to endanger the safety of any person traveling, he shall be punishable with imprisonment for a term which may extent (sic extend) to one year or with fine or with both. The conjoint interpretation of the above provision is that act of leaning out of the compartment is a rash and negligent act, punishable under law. Thus, in the instant case, the victim had sustained injury by his own act.”

5. Dismissal of the claim application by the tribunal, as aforesaid, is under challenge before us in this appeal at the instance of the unfortunate unsuccessful appellant.

6. Mr. Banerjee, learned advocate representing the appellant submits that the tribunal committed gross jurisdictional error in dismissing the claim application. According to him, the tribunal failed to construe Section 124-A of the Railway Act, 1989 (hereafter the Act) in the proper perspective and returned findings which are indefensible. Citing the decision of the Supreme Court reported in (2008) 9 SCC 527 : Union of India v. Prabhakaran Vijaya Kumar, he contends that Section 124-A of the Act envisions the concept of “no fault liability” and thus, irrespective of whether the victim of an untoward incident as defined in Section 123(c) of the Act is at fault or not, a claim application would be maintainable at the instance of his heirs. He also submits that the tribunal ought to have awarded compensation to the appellant bearing in mind the provisions contained in the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, as amended from time to time. It is urged that in view of the recent amendment of Rule 4 enforced w.e.f January 1, 2017, the claimant is entitled to Rs. 8,00,000/-. Reliance has been placed on the decision of the Supreme Court reported in 2001 WBLR (SC) 515 : Rathi Menon v. Union Of India for claiming relief of enhanced compensation in terms of the amendment in the Rules. The decision of the Supreme Court reported in (2009) 3 WBLR (SC) 593 : Thazhathe Purayil Sarabi v. Union of India and a coordinate bench decision of this Court reported in (2009) 3 WBLR (Cal) 413 : Mainura Bibi v. Union of India, have also been relied on for interest on the sum claimed from the date of filing of the claim application.

7. Appearing for the respondent and supporting the judgment under challenge, Mr. Das learned advocate has placed before us the general rules relating to conveyance of passenger and luggage traffic etc. Referring particularly to Rule 338 thereof providing for “prevention of accident”, he submits that the victim had no business to lean out from the compartment for any purpose whatsoever and since he contributed to his own downfall by leaning out for spitting, his widow is not entitled to any compensation. He, accordingly, prays for dismissal of the appeal.

8. Mr. Das also contends that if at all the appellant is held entitled to compensation, since the accident as well as the claim application relates back to a date prior to the amendment of the Rules, she is not entitled to the benefit of the amendment of rule 4 thereof that has been enforced from the first day of this year; and that her claim would be governed by the Rules as it stood on the date the claim application was filed. So far as award of interest is concerned, he contends that there is no provision to that effect in the Act or the Rules and, therefore, we ought not to saddle the respondent thereby.

9. Have heard the learned advocates for the parties and on perusal of the materials on record, we are unhesitatingly of the opinion that the tribunal has not proceeded in the right direction in dealing with the claim application and has returned erroneous findings on issue nos. 3 and 4, despite answering issue nos. 1 and 2 in favour of the appellant. The tribunal failed to consider section 124-A of the Act in the proper perspective resulting in its decision to dismiss the claim, which is indefensible.

10. In Prabhakaran Vijaya Kumar (supra), the Supreme Court while dealing with section 124-A of the Act held as follows:

“17. Section 124-A lays down strict liability or no fault liability in case of railway accidents. Hence, if a case comes within the purview of Section 124-A it is wholly irrelevant as to who was at fault.

23. Thus, in cases where the principle of strict liability applies, the defendant has to pay damages for injury caused to the plaintiff, even though the defendant may not have been at any fault.”

11. We may at this stage also note the decision of the Supreme Court reported in (2010) 12 SCC 443 : Jameela v. Union of India, where it has held as follows:

10. 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).

11. Coming back to the case in hand, it is not the case of the Railways 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.

12. The manner in which the accident is sought to be reconstructed by the Railways, that 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 on 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.

12. The point canvassed before us is, thus, no longer res integra. Irrespective of the admitted position that the railway was not at fault for the untoward incident leading to accidental death of the husband of the appellant, it has to compensate the appellant having regard to the terms of section 124-A. Issue no. 3 framed by the tribunal, therefore, ought to have been answered in favour of the appellant by the tribunal, which we hereby answer in her favour.

13. The last point turns on the quantum of compensation payable to the appellant and the rate of interest.

14. Consequent to amendment of rule 4 of the Rules, the amount of compensation now payable under section 124-A of the Act has been enhanced to Rs. 8,00,000/-. Rathi Menon (supra) is the authority on the point that enhanced compensation ought to be awarded irrespective of the date of the accident. That apart, the decisions in Thazhathe Purayil Sarabi (supra) and Mainura Bibi (supra) are authorities for the proposition that even in the absence of a provision enabling the tribunal to award interest, the same may be awarded.

15. We, therefore, set aside the judgment under challenge and direct that the appellant shall be entitled to compensation of Rs. 8,00,000/- together with interest @ 9% p.a from the date of presentation of the claim application till payment is made in terms of this order.

16. Since the appellant has been surviving without any compensation being paid to her since long, it would be desirable if the respondent effects payment in terms of this order as early as possible but not beyond April, 2017.

17. In the result, the appeal is allowed without costs.

18. Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.

Sahidullah Munshi, J.:— I agree.