IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR M.F.A. NO. 3103 OF 2012 (RCT) BETWEEN The Union of India, Rep. by its General Manager, South Western Railway, Hubli. ... Appellant (By Sri. N.S. Sanjay Gowda, Advocate and Sri. Byregowda N., Advocate) AND 1. Sri. Nagaraja Naika, S/o Devla Naika, 63 years.
2. Sri. Chandrashekara Naika, S/o Nagaraja Naika, 24 years.
3. Ms. Nethra Bai, D/o Nagaraja Naika, 19 years.
4. Smt. Rukmini Bai, W/o Devla Naika, 73 years.
All are residents of Tholahunse Village, Davangere Taluk.
... Respondents (By Sri. M.A. Malvi, Advocate and Sri. M.R. Hiremathad, Advocate for R1 to R4.) This MFA is filed under Order 23 of Railway Claims Tribunal, against the judgment dated 28.12.2011 passed in OA No.11 U 134/2009 on the file of Railway Claims Tribunal, Bangalore Bench, awarding a compensation of Rs. 4,00,000/-.
This MFA coming on for hearing, this day, the Court delivered the following:
JUDGMENT Heard the learned counsel for the appellant – Union of India and the learned counsel for the respondents.
2. This appeal is preferred by the appellant / Union of India aggrieved by the order passed by the Railway Claims Tribunal, Bangalore Bench, Bangalore, in O.A.No.II U 134/2009 dated 28.12.2011. In the claim petition, the said RCT, Bangalore Bench, had awarded compensation in a sum of Rs.4,00,000/- in favour of the respondents – claimants, also mentioning the amounts of apportionment among the four claimants. The Railways were directed to pay simple interest on the said compensation amount of Rs.4,00,000/- at the rate of 6% p.a. from the date of the claim application till the date of order and further simple interest at 9% from the date of order till the date of actual payment. The said order passed by the Member (Technical), RCT, Bangalore, is in challenge in this appeal urging various grounds.
The claimants / respondents herein are said to have filed O.A.No.II U 134/2009 under Section 16 of the RCT Act, 1987 read with Section 124-A of the Railways Act, 1989 before the Railway Claims Tribunal, Bangalore, seeking compensation of Rs.4,00,000/- for the death of one Smt. Ambi Bai. The first respondent is the husband of the deceased, second respondent being the son and third respondent the minor daughter of the deceased and fourth respondent was the mother in law of the deceased. According to the respondents, the deceased Ambi Bai had purchased a ticket bearing No.82185 dated 06.10.2008 to go to Tholahunse by Chitradurga – Harihar passenger train which was scheduled to come to Sasalu at about 7.00 p.m. The deceased is said to be an illiterate lady. On the said day, another train namely, Intercity Express no.2725 from Bangalore to Hubbali had come to Sasalu Railway Station. At that point of time since there was no road over bridge or under bridge or any other facilities to go from one platform to the other, the deceased Ambi Bai was forced to cross the railway track to reach the other platform where the train she was to board was scheduled to come. But when she was crossing the railway track, unfortunately she was run over by the said Intercity express and had died on the spot. This being an untoward incident, the respondents had filed the said application claiming compensation to the Railways. However, the Railways filed their reply statement denying all the allegations and had contended that the deceased was not a bonafide passenger on that particular day and that she was a trespasser and the death had occurred due to her own act for which the railways cannot be held responsible and etc. However, the RCT on hearing both the parties framed issues for its consideration and answered the issues in the affirmative stating that the deceased had died in an untoward accident, she was a bonafide passenger on that fateful day, that the Respondents 1 to 3 / Applicants 1 to 3 including another married daughter Pavithra are the dependants of the deceased and finally awarded a total compensation of Rs.4,00,000/- in favour of the applicants and the RCT had also apportioned it among the four dependants. It is aggrieved by the said order of the RCT that the Union of India has filed this appeal seeking to set aside the order dated 28.02.2011 passed in OA No.II U 134/2009 by the RCT, Bangalore Bench and consequently to reject the claim application.
3. The learned counsel for the appellant – Union of India contends that the claimants / respondents have themselves stated that the deceased while crossing the railway track, was run over by another train namely the Intercity Express and the said fact was also corroborated by the Statutory report which also stated that the deceased while crossing the track was run over by the Intercity Express. However, this Court has held in various decisions that a person who is run over by a train cannot be considered as a victim of an untoward incident. Hence, in view of the settled position of law, the decision of the Railway Claims Tribunal is wholly incorrect and cannot be sustained.
It is further contended by the learned counsel for the appellant – Union of India that the reliance placed by the Tribunal of the decision in the case of UNION OF INDIA vs. SMT. AHALYA PRUSTI & ANOTHER (AIR 2009 ORISSA 63) is incorrect and is contrary to the provisions of the Act. It is contended that a person who is hurt / killed while crossing a railway track can never be considered as a victim of an untoward incident and hence the order of the RCT cannot be sustained. Hence, the learned counsel contends that the order of the RCT be set aside and the claim application be rejected.
4. Per contra, learned counsel for the respondents / applicants contend that the Member (Technical), RCT, Bangalore has in fact taken into consideration the material evidence of both the sides on record and keeping in view the facts and circumstances of the case, has come to a right conclusion that the dependants of the deceased ought to be awarded compensation of Rs.4,00,000/- in view of Ambi Bai’s death in an untoward incident and hence has awarded the said compensation. Since the deceased had purchased the ticket to travel by passenger train, she was a bonafide passenger and was not a trespasser. It is due to the fact that there was no road over bridge or under bridge to reach the other platform that she had tried to cross the railway track. When there was no other way to go to the other platform, the deceased cannot be blamed saying that the death was caused due to her own negligence and illegal act of trespass. Hence, the learned counsel contends that the order dated 28.12.2011 passed by the Railway Claims Tribunal in O.A.No.II U 134/2009 awarding compensation to the dependants of the deceased, is just and proper and does not call for any interference by this court.
5. On hearing the learned counsel for the Union of India and the learned counsel for the respondents and on an examination of the evidence on record, it is seen that RW-2 Sri Rajappa, Asst. Loco Pilot who was on duty in Train No.2725 – Intercity Express has himself stated in his deposition as follows:
“…On 06.10.2008, I was working as Asst. Loco Pilot in the Train No.2725 – Intercity Express. Ex.SBC-UBL. When the train was passing near the Railway Bridge of Salulu Railway Station Yard, I saw one woman crossing the railway track and came in front of my train and was run over. Then, I informed the incident to loco pilot. The train was not stopped on account of this incident. The loco pilot viz., informed the Sasulu Station Master only through walkie-
talkie. The distance between the Railway Bridge and Railway Station is about 200 to 300 meters. … After seeking the woman crossing the railway track, we did not stop the train as it was in mid-section. I know the Sasalu Railway Station. There are five number of tracks in the Sasulu Railway Station and in one track my train was running. In another track, one passenger train was standing on the platform No.1 on the day of the incident. At Sasulu Railway Station, there are no provision of road over bridge or road under bridge. I do not know whether there is public announcement system at Sasulu Railway Station on 06.10.2008. There is no stoppage for Train No.2725 – Intercity at Sasulu Railway Station and for this reason I don’t know the details of arrival and departure of trains at Sasulu Railway Station. …”
(emphasis supplied) Hence, as per the evidence given by the Asst. Loco Pilot himself, it is clear that there was no road over bridge or under bridge at the Sasalu Railway Station. When there was no road over bridge or under bridge, I find that the RCT has come to a right conclusion that the dependants ought to be granted compensation.
6. Further, as regards the contention of the learned counsel for the appellant – Union of India that her death cannot be terms as an ‘untoward incident’, it is relevant to refer to a judgment of the High Court of Delhi in the case of RANI DEVI V. UNION OF INDIA (2018 ACJ 2681), wherein it is held that:
Railways Act, 1989, sections 123 (c) (2) and 124-A – Untoward incident – Negligence of victim – Passenger fell down while boarding train at platform and sustained fatal injuries – Railway Claims Tribunal dismissed the claim application on the grounds that deceased was not a bona fide passenger as ticket was not recovered from him but was later produced by claimant and the train in question departed before the occurrence of the incident – Section 124-A is based on the principle of no fault liability and compensation cannot be denied on the ground that deceased was negligent and it is wholly irrelevant as to who was at fault – Body of the deceased was found on the tracks near platform which proves the accident resulting in the death of deceased – Whether the deceased died in an untoward incident and Railways is liable”
In the said judgment, it is held that Section 124-A is based on the principle of no fault liability and compensation cannot be denied on the ground that deceased was negligent and it is wholly irrelevant as to who was at fault and so also body of the deceased was found on the tracks near platform which proves the accident resulting in the death of deceased. The Railways is liable to pay compensation to the dependants, when the deceased died in an untoward incident.
7. Further, in view of Section 123(b) of the Railway Act, the RCT holding that Respondents 1 to 3 and the other married daughter by name Pavithra were the dependants of the deceased, cannot be found fault with. Hence, in this appeal, the grounds urged by the learned counsel for the appellant does not hold any substance to call for any interference of the impugned order passed by the Railway Claims Tribunal, Bangalore Bench, Bangalore.
Therefore, for the aforesaid reasons I find that the appeal filed by the Union of India is devoid of merits.
Consequently, the present appeal is rejected by confirming the order passed by the RCT, Bangalore in OA No.II U 134/2009 dated 28.12.2011. The rate of interest as well as the apportionment among the dependants of the deceased ordered by the Tribunal by the said order, also shall remain unaltered.
Registry is directed to transmit the amount in deposit in this appeal along with the appeal papers and LCR if any, to the concerned RCT, Bangalore Bench, Bangalore, for disbursal of the amounts to the concerned, in accordance with law, on proper identification and acknowledgement.
SD/- JUDGE KS