UNION OF INDIA versus RINA DEVI on 9 May 2018

[2018] 4 S.C.R. 417

UNION OF INDIA

v.

RINA DEVI

(Civil Appeal No. 4945 of 2018)

MAY 09, 2018

[ADARSH KUMAR GOEL AND R. F. NARIMAN, JJ.]

Railways Act, 1989:

Railway accident claim – Compensation – Quantum of – Asper the rate of compensation as on the date of application/incidentor on the date of order awarding compensation – Held:Compensation would be payable as applicable on the date of theaccident with interest as may be considered reasonable as in accidentclaim cases – If compensation provided on the date of award of thetribunal is higher than unrevised amount with interest, higher ofthe two amounts has to be given.

s. 124A – Compensation on account of untoward incident –Death or injury in the course of boarding or de-boarding a train –Compensation to victim – Entitlement of – Held: Death or injury inthe course of boarding or de-boarding a train will be an ‘untowardincident’ entitling a victim to the compensation – It would not fallunder the proviso to s. 124A merely on the plea of negligence of thevictim as a contributing factor – Concept of ‘self inflicted injury’requires intention to inflict such injury and not mere negligence ofany particular degree.

ss. 55 and 137 – Person found dead near the railway track –Whether a bonafide passenger for maintainability of claim forcompensation – Held: Mere presence of a body on the Railwaypremises will not be conclusive to hold that injured or deceasedwas a bona fide passenger for which claim for compensation couldbe maintained – However, mere absence of ticket with such injuredor deceased will not negative the claim that he was a bona fidepassenger – Initial burden will be on the claimant which can bedischarged by filing an affidavit of the relevant facts and burdenwill then shift on the Railways and the issue can be decided on thefacts shown or the attending circumstances.

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ARailway accident claim – Award of interest – Held: Interestcan be awarded from the date of accident itself when the liability ofthe Railways arises upto the date of payment, without any differencein the stages.

Disposing of the appeal, the CourtBHELD : Quantum of Compensation:

1.1 The liability will accrue on the date of the accident andthe amount applicable as on that date will be the amountrecoverable but the claimant will get interest from the date ofaccident till the payment at such rate as may be considered justCand fair from time to time. Rate of interest applicable in motoraccident claim cases can be held to be reasonable and fair. [Para15.3][431-B-C]

1.2 Compensation will be payable as applicable on the dateof the accident with interest as may be considered reasonableDfrom time to time on the same pattern as in accident claim cases.If the amount so calculated is less than the amount prescribed ason the date of the award of the Tribunal, the claimant will beentitled to higher of the two amounts. This order will not affectthe awards which have already become final and where limitationEfor challenging such awards has expired, this order will not byitself be a ground for condonation of delay. Compensation asapplicable on the date of the accident has to be given withreasonable interest and to give effect to the mandate of beneficiallegislation, if compensation as provided on the date of award ofthe Tribunal is higher than unrevised amount with interest, theFhigher of the two amounts has to be given. [Para 15.4][431-E-F,G]

Pratap Narain Singh Deo v. Srinivas Sabata (1976) 1SCC 289 – held applicable.

Rathi Menon v. Union of India (2001) 3 SCC 714 :G[2001] 2 SCR 365 ; P. A. Narayanan v. Union of India(1998) 9 SCC 134 ; Maghar Singh v. Jashwant Singh(1998) 3 SCC 67 ; Thazhathe Purayil Sarabi v. Unionof India (2010) TAC 420 SC ; Mohamadi v. Union ofIndia (2011) ACJ 2356 ; Kalandi Charan Sahoo v.HGeneral Manager, South-East Central Railway, Bilaspur

Civil Appeal No.5608 of 2017 decided on 25.4.2017 ;Union of India v. Raman Iron Foundry (1974) 2 SCC231 ; Kesoram Industries & Cotton Mills Ltd. v. CWTCentral Calcutta [1966] 2 SCR 688 – referred to.

-Application of Principle of Strict Liabillity Concept of SelfInflicted Injury:

2.1 Section 124 and 124A of the Railways Act, 1989 providethat compensation is payable whether or not there has beenwrongful act, neglect or fault on the part of the railwayadministration in the case of an accident or in the case of an‘untoward incident’. Only exceptions are those provided underproviso to section 124A. Coming to the proviso to Section 124Ato the effect that no compensation is payable if passenger dies orsuffers injury due to the situations mentioned therein, there isno difficulty as regards suicide or attempted suicide in which caseno compensation may be payable. [Para 16.1, 16.2][432-B, C]

2.2 The concept of ‘self inflicted injury’ would requireintention to inflict such injury and not mere negligence of anyparticular degree. Doing so would amount to invoking theprinciple of contributory negligence which cannot be done in thecase of liability based on ‘no fault theory’. Death or injury in thecourse of boarding or de-boarding a train will be an ‘untowardincident’ entitling a victim to the compensation and will not fallunder proviso to s. 124A merely on the plea of negligence of thevictim as a contributing factor. [Para 16.6][435-B-D]

Union of India v. Prabhakaran Vijaya Kumar (2008) 9SCC 527 ; Jameela v. Union of India (2010) 12 SCC443 ; Joseph PT v. Union of India AIR 2014 Kerala(12) ; Pushpa v. Union of India (2017) III ACC 799(Bom) ; Shayam Narayan v. Union of India (2018) ACJ702 – referred to.

–Burden of Proof When Body Found on Railway Premises Definition of Passenger:

3. Mere presence of a body on the Railway premises willnot be conclusive to hold that injured or deceased was a bonafide passenger for which claim for compensation could bemaintained. However, mere absence of ticket with such injured A

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Aor deceased will not negative the claim that he was a bona fidepassenger. Initial burden will be on the claimant which can bedischarged by filing an affidavit of the relevant facts and burdenwill then shift on the Railways and the issue can be decided onthe facts shown or the attending circumstances. [Para 17.4][438- B-D]B

Raj Kumari v. Union of India (1993) ACJ 846 ;Gurcharan Singh v. Union of India (2015) ACJ 171 ;Jetty Naga Lakshmi Parvathi v. Union of India 2013ACJ 1061 ; Kamrunissa v. Union of India AIR 2017SC 1436 : 2017 SCC Online SC 304 – referred to.

CRate of Interest:

4. Though this Court in Thazhathe Purayil Sarabi case heldthat rate of interest has to be at the rate of 6% from the date ofapplication till the date of the award and 9% thereafter and 9%rate of interest was awarded from the date of application inDMohamadi case, rate of interest has to be reasonable rate at parwith accident claim cases. In absence of any specific statutoryprovision, interest can be awarded from the date of accident itselfwhen the liability of the Railways arises upto the date of payment,without any difference in the stages. Legal position in this regardis at par with the cases of accident claims under the Motor VehiclesEAct, 1988. [Para 18][438-E-F]

Thazhathe Purayil Sarabi v. Union of India (2010) TAC420 SC ; Mohamadi v Union of India (2011) ACJ2356 ; Union of India v. Kurukundu Balakrishnaiah(2004) ACJ 529 ; Kaushalaya Devi v. Union of IndiaFthrough General Manager, North Eastern Railway,Gorakhpur, U.P. PLJR 2008 (3) 711 ; AgamShanthamma v Union of India (2004) ACJ 713 ; Unionof India v. Leelamma 2009 (1) KLT 914 ; Union ofIndia v. Surekha (2011) ACJ 1845 ; Ramdhan v. Unionof India (2009) ACJ 2487; Union of India v. NandabaiG(2016) ACJ 411; Asharani Das v Union of India 2009(2) Cal LT 467 ; Kerala State Electricity Board v. ValsalaK. (1999) 8 SCC 254 ; United India Insurance CompanyLtd. v. Alavi (1998) 3 LLN 285 ; Rahamath Ulla andOrs v. Union of India Claim Application No. OA(II)U/H168/2013 – referred to.

ACIVIL APPELLATE JURISDICTION : Civil Appeal No. 4945of 2018.

From the Judgment and Order dated 16.10.2017 of the High Courtof Judicature at Patna in Miscellaneous Appeal No. 198 of 2013.

Vikramjeet Banerjee, ASG, Mukul Rohatgi, Sr. Adv(AC), BharatBSingh, Nichi Kats Joshi, Raj Bahadur, Ms. Nachiketa Joshi, Mrs. AnilKatiyar, Advs for the appearing parties.

The Judgment of the Court was delivered by ADARSH KUMAR GOEL, J. 1. This appeal has beenCpreferred against award of compensation of Rs.4 lakhs under Section124A of the Railways Act, 1989 (1989 Act).

2. The respondent filed claim for compensation for death of herhusband Jatan Gope in an ‘untoward incident’ on 20[th] August, 2002.Her case is that the deceased had purchased a ticket of second class forDKarauta to Khusrupur by train No.532. He fell down from the traindue to rush of passengers and died on the spot. One Kailash Gope whowitnessed the deceased purchasing the ticket and boarding the trainfiled an affidavit stating these facts. He was not cross-examined. Caseof the respondent is that the ticket was not recovered from possessionof the deceased as it may have been lost somewhere.E

3. The claim was contested by the appellant. It was stated thatthe deceased was not a passenger but was wandering near the railwaytrack. Cousin of the deceased who lodged FIR stated the deceased wassuffering from mental disorder and was wandering in that state of mind.However, he was not examined as a witness.F

4. The Tribunal dismissed the claim on the ground that it was nota case of ‘untoward incident’ but a case of ‘run over’. The deceasedwas not a bona fide passenger.

5. The High Court set aside the order of the Tribunal by relyingGupon the evidence of Kailash Gope who filed affidavit to the effect thatthe deceased had purchased the ticket and had boarded the train. Thesaid witness has not been cross-examined. Reliance was placed on aDivision Bench judgment of the High Court in Kaushalaya Devi versusUnion of India through General Manager, North Eastern Railway, H

Gorakhpur, U.P.[1] to the effect that if a dead body is found in theprecincts of the Railway Station, there is a presumption that the deceasedwas a bona fide passenger. Onus to prove that he was a ticketlesstraveller was on the Railway. Judgment of this Court in Kamrunissaversus Union of India[2]to the effect that the ‘run over’ was differentfrom ‘untoward incident’ was distinguished. Therein, there was noevidence about the deceased purchasing the ticket as in the presentcase.

6. This appeal has been preferred mainly on the ground that theclaim of the respondent was not admissible in absence of an ‘untowardincident’ as defined under Section 123(c) of the 1989 Act as rightly heldby the Tribunal. Mere presence of body in the precincts of the Railwaywas not enough to presume that he was a bona fide purchaser particularlywhen no ticket was found from the deceased.

7. Learned ASG made it clear that the appellant was interestedonly in laying down of law on the subject even if the impugned judgmentwas not disturbed. Accordingly, we requested Shri Mukul Rohtagi, learnedsenior counsel to assist the court as Amicus, instead of issuing notice tothe respondent. We do not propose to disturb the impugned judgmentirrespective of its correctness and we propose to consider the legal issuesought to be raised and the issues that have been brought to our noticeby the Railway Tribunal as shown later.

8. Vide order dated 13[th] March, 2018, we noted the issue ofapparent conflict in Rathi Menon versus Union of India[3] and KalandiCharan Sahoo versus General Manager, South-East CentralRailway, Bilaspur[4]as to the relevant date for applying the rate ofcompensation when different rate is applicable at the time of filing ofclaim and on the date of the order. A submission has been filed by theRegistrar Principal Bench, Railway Claims Tribunal seeking clarificationon four subjects which repeatedly arise before the said Tribunal i.e. :

(i) Quantum of compensation: It is stated that there is a conflictin the decisions in Rathi Menon (supra) and Kalandi CharanSahoo (supra) which needs clarification. We have already takennote of this issue.

1 PLJR 2008 (3), page 711

2 AIR 2017 SC 1436 = 2017 SCC Online SC 304

3 (2001) 3 SCC 714, para 30

4 Civil Appeal No.5608 of 2017 decided on 25.4.2017

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A(ii) Definition of passenger: Whether any person found deadnear the track on Railway Precincts can be held to be a bona fidepassenger for maintainability of a claim for compensation in absenceof recovery of a ticket from his body. Conflicting decisions ofAndhra Pradesh High Court in Agam Shanthamma versus Unionof India[5]; Kerala High Court in Union of India versusBLeelamma[6]; Bombay High Court (Nagpur Bench) in Union ofIndia versus Surekha[7]; Ramdhan versus Union of India[8]; &Union of India versus Nandabai[9]; Calcutta High Court inAsharani Das versus Union of India[10]; and Madhya PradeshHigh Court in Raj Kumari versus Union of India[11] are requiredCto be resolved on this subject.

(iii) The concept of self inflicted injury: Whether attempt ofgetting into or getting down a moving train resulting in an accidentwas a case of ‘self inflicted injury’ so as not to entitle to anycompensation or no such concept could not apply under the schemeof law which casts strict liability to pay compensation by theRailway under Sections 124 and 124A. In this regard views of theHigh Courts of Kerala in Joseph PT versus Union of India[12],Bombay in Pushpa versus Union of India[13]and Delhi in ShayamNarayan versus Union of India[14] may appear to be against thedecisions of this Court in Union of India versus Prabhakaran D

EVijaya Kumar[15] and Jameela versus Union of India[16].

(iv) Award of interest. The Act is silent about the interest. InThazhathe Purayil Sarabi versus Union of India[17], this Courtheld that the CPC could be invoked and interest awarded at therate of 6% p.a. from the date of application till the date of awardFand 9% p.a. interest from the date of award till the date of payment.

5 (2004) ACJ 7136 2009 (1) KLT 9147 (2011) ACJ 18458 (2009) ACJ 24879 (2016) ACJ 411G102009 (2) CalLT 46711 (1993) ACJ 84612 AIR 2014 Kerala (12)13 (2017) III ACC 799 (Bom)14 (2018) ACJ 70215 (2008) 9 SCC 52716 (2010) 12 SCC 443H17 (2010) TAC 420 SC

In Mohamadi versus Union of India[18]interest at the rate of 9%was awarded without any difference between the date ofapplication and date of award or for subsequent award.

9. An additional affidavit has been filed on behalf of the appellantto the effect that judgment in Rathi Menon (supra) did not lay downcorrect law to the effect that rate of compensation should be as applicableon the date of order. It is submitted that the said judgment did not considerthe decision of 4-Judge Bench decision in Pratap Narain Singh Deoversus Srinivas Sabata[19] to the effect that liability to pay compensationarises as soon as injury is caused. This was reiterated in Kerala StateElectricity Board versus Valsala K.[20]. Kerala High Court took thesame view in United India Insurance Company Ltd. versus Alavi[21].

10. In its written submissions, the appellant has dealt with theissues of quantum of compensation, definition of passenger and strictliability. It has been submitted that the view taken in Kalandi CharanSahoo (supra) was a correct view. Reference has also been made tothe view taken by the Railway Claims Tribunal, Bangalore Bench in itsjudgment dated 19[th] February, 2018 in Rahamath Ulla and Ors versusUnion of India[22]. As regards the definition of passenger and presumptionto be drawn from the dead body found on the railway premises withoutany ticket, it is submitted that if no ticket is found from the body of theperson, presumption of being a bona fide passenger could not be drawn.Contra view of the Patna High Court in Kaushalya Devi (supra) waserroneous and view of Delhi High Court in Gurcharan Singh versusUnion of India[23] and Andhra Pradesh High Court in Jetty NagaLakshmi Parvathi versus Union of India[24]was correct law. Withregard to strict liability, it is submitted that a distinction has to be drawnbetween an ‘untoward incident’ and a ‘run over’. It is submitted that inview of Kamrunissa (supra) claimants should be put to strict proof ofliabililty. There are 38000 cases pending in Tribunals. Railwayadministration grants compensation in all genuine cases. If in spite ofnon recovery of ticket, the claimant is exempted from the burden of 18 (2011) ACJ 2356

19 (1976) 1 SCC 289

20 (1999) 8 SCC 254

21 (1998) 3 LLN 285

22 Claim Application No.OA(II)U/168/2013

23 (2015) ACJ 171

24 2013 ACJ 1061

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Aproof and the Railway is required to meet such claim, the liability of theRailway will increase disproportionately. At present, Railway was payingapproximately Rs.350 crores as compensation. There are 68,000kilometers of railway tracks which are porous/unmanned resulting inuntoward incidents for which liability ought not to be fastened on theRailways without valid proof of its liability. Andhra Pradesh High CourtBin Union of India versus Kurukundu Balakrishnaiah[25] rightly heldthat norms of evidence cannot be completely ignored.

11. Shri Rohtagi, learned Amicus submitted that the view taken inRathi Menon (supra) ought to be preferred and rate of compensationas on the date of the order should be applied. He submitted that inCcommon law the amount becomes due on the date of assessment as laiddown in Union of India versus Raman Iron Foundry[26] and KesoramIndustries & Cotton Mills Ltd. versus CWT Central Calcutta[27].Moreover, the present being case of a beneficial legislation, if twointerpretations are possible interpretation beneficial to the claimant hasDto be preferred, consistent with the law laid down in Prabhakaran VijayaKumar (supra). He submitted that Workmen’s Compensation Act (nownamed as Employee’s Compensation Act, 1923) was amended in theyear 1958 and in clause 5 of notes on clauses in the Bill, it was stated:

“Clause 5. – This provision is being made in order to ensureEthat the workman is able to get whatever amount the employeris prepared to pay immediately pending a decision on theamount of compensation actually due.

This clause also provides for payment of interest if thecompensation is not paid within one month from the due dateFand for a penalty if the Commissioner does not consider thedelay to be justified.”

12. This shows that intention of law is that compensation due isonly after a decision even though amount may be required to beimmediately paid. In case compensation is not immediately paid, SectionG4A of the 1923 Act provides for interest and penalty. Thus, the rateapplicable should be as on the date of order.

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25 (2004) ACJ 529

26 (1974) 2 SCC 231, para 1127 (1966) 2 SCR 688, para 33

13. We have anxiously considered the rival submissions. Weconsider it necessary to quote the relevant provisions of the 1989 Act :

“S.123. Definitions. - In this Chapter, unless the contextotherwise requires,- (a) “accident” means an accident of the nature described insection 124; (b) xxxxxxxxxxxxxxxx 1[(c) “untoward incident” means—

xxxxxxxxxxxxxxxx

(2) the accidental falling of any passenger from a traincarrying passengers.]

S.124. Extent of liabililty - When in the course of working arailway, an accident occurs, being either a collision betweentrains of which one is a train carrying passengers or thederailment of or other accident to a train or any part of atrain carrying passengers, then whether or not there has beenany wrongful act, neglect or default on the part of the railwayadministration such as would entitle a passenger who hasbeen injured or has suffered a loss to maintain an action andrecover damages in respect thereof, the railway administrationshall, notwithstanding anything contained in any other law,be liable to pay compensation to such extent as may beprescribed and to that extent only for loss occasioned by thedeath of a passenger dying as a result of such accident, andfor personal injury and loss, destruction, damage ordeterioration of goods owned by the passenger andaccompanying him in his compartment or on the train,sustained as a result of such accident.

Explanation.—For the purposes of this section “passenger”includes a railway servant on duty.

S.124A. Compensation on account of untoward incident -When in the course of working a railway an untowardincident occurs, then whether or not there has been anywrongful act, neglect or default on the part of the railwayadministration such as would entitle a passenger who has A

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Abeen injured or the dependant of a passenger who has beenkilled to maintain an action and recover damages in respectthereof, the railway administration shall, notwithstandinganything contained in any other law, be liable to paycompensation to such extent as may be prescribed and to thatextent only for loss occasioned by the death of, or injury to,Ba passenger as a result of such untoward incident:

Provided that no compensation shall be payable under thissection by the railway administration if the passenger dies orsuffers injury due to—

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(b) self-inflicted injury;

(c) his own criminal act;

(d) any act committed by him in a state of intoxication orinsanity; (e) any natural cause or disease or medical or surgical treat-ment unless such treatment becomes necessary due to injurycaused by the said untoward incident.

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Explanation. —For the purposes of this section, “passenger”includes—

(i) a railway servant on duty; and

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(ii) a person who has purchased a valid ticket for travellingby a train carrying passengers, on any date or a valid plat-form ticket and becomes a victim of an untoward incident.]”

14. In exercise of power under Section 129 of the 1989 Act, theCentral Government framed rules called Railway Accidents andFUntoward Incidents (Compensation) Rules, 1990. The rules providedfor a schedule prescribing the amount of compensation payable in respectof death and injuries. The said rules have been amended w.e.f. 1[st]January, 2017 by notification dated 22[nd] December, 2016 substituting theschedule by higher amount of compensation.

G15. We now proceed to deal with the following issues seriatim:

(i) Whether the quantum of compensation should be as per theprescribed rate of compensation as on the date of application/incident or on the date of order awarding compensation;

(ii) Whether principle of strict liability applies;

(iii) Whether presence of a body near the railway track is enough to maintain a claim.

(iv) Rate of interest.

Re: (i)Quantum of Compensation

15.1 In Rathi Menon (supra), this Court considered the questionwhether the compensation to be applied would be as per rules applicableon the date of the order or as per the rules in force at the time of accidentor the untoward incident. Reversing the view taken by the Kerala HighCourt that the liability to pay compensation arises as soon as accidenthappens and not when the quantum is determined, this Court held thatliability is to pay compensation ‘as may be prescribed’ which means ason the date of the order of the Tribunal. This Court observed that ifinterpretation placed by the Kerala High Court was to be accepted andthe claimant was to get compensation in terms of market value whichprevailed on the date of the accident, the money value of the compensationwill be reduced value on account of lapse of time. The revision of rateby the Central Government may itself show that the money value hascome down. The Tribunal must apply the rate applicable as per therules at the time of making of the order for payment of compensation[28].This Court distinguished judgments of the larger Bench in Pratap NarainSingh Deo (supra), P.A. Narayanan versus Union of India[29]andMaghar Singh versus Jashwant Singh[30]. It was observed that PratapNarain Singh Deo (supra) and Maghar Singh (supra) were judgmentsunder the Workmen Compensation Act where the scheme was differentas in the said Act there was a provision for interest and penalty if depositwas not made. Judgment in P.A. Narayanan (supra) was relied upon tosupport the view that therein compensation was awarded even thoughaccident was of a date much earlier to the rules providing forcompensation.

15.2. Learned ASG for the appellant submitted that view in RathiMenon (supra) stands watered down by subsequent decisions especiallyin Thazhathe Purayil Sarabi (supra), Mohamadi (supra) and KalandiCharan Sahoo (supra). Rathi Menon (supra) was premised on the 28 Paras 29 and 3029 (1998) 3 SCC 6730 (1998) 9 SCC 134

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Abasis that there was no law for interest and there will be injustice ifcompensation was paid at money value which had got reduced by thetime the compensation was paid. Factually interest was awarded inRathi Menon (Supra). It was on that basis that judgments in WorkmenCompensation cases were held to be distinguishable though the saidjudgments are of larger Benches[31]. Subsequently in Thazhathe PurayilBSarabi (supra) it has been held by this Court, after referring to RathiMenon (supra), that right to claim compensation accrued on the date ofthe incident though compensation is computed on the date of the awardof the Tribunal. To compensate for loss of money value on account oflapse of time and for the denial of right to utilize the money when due,Cinterest was required to be paid[32]. Accordingly, this Court directedpayment of interest on the awarded sum from the date of application tillthe date of recovery. This view was followed in Mohamadi (supra). InKalandi Charan Sahoo (supra), without any specific discussion on thelegal issue involved, direction was issued for payment of compensation which was applicable at the material time and the same was assumed toDbe of Rs.4 lakhs. In that case, the accident took place in the year 2005and the award of the Tribunal was in 2009 i.e. prior to 1[st] January, 2017.

15.3. Learned amicus has referred to judgments of this Court inRaman Iron Foundry (supra) and Kesoram Industries (supra) tosubmit that quantum of compensation applicable is to be as on the awardEof the Tribunal as the amount due is only on that day and not earlier. InKesoram Industries (supra), the question was when for purposes ofcalculating ‘net wealth’ under the Wealth Tax Act, 1957 provision forpayment of tax could be treated as ‘debt owed’ within the meaning ofSection 2(m) of the said Act. This Court held that ‘debt’ was obligationFto pay. The sum payable on a contingency, however, does not become‘debt’ until the said contingency happens. The liability to pay tax ariseson such tax being quantified. But when the rate of tax is ascertainable,the amount can be treated as debt for the year for which the tax is duefor purposes of valuation during the accounting year in question. There is no conflict in the ratio of this judgment with the principle propoundedGin Thazhathe Purayil Sarabi (supra) that in the present context right tocompensation arises on the date of the accident. In Raman IronFoundry (supra), the question was whether a claim for unliquidateddamages does not give rise to ‘a debt’ till the liability is determined. It 31 Para 33 of the judgmentH32 Para 26

was held that no debt arises from a claim for unliquidated damages untilthe liability is adjudicated. Even from this judgment it is not possible tohold that the liability for compensation, in the present context, arises onlyon determination thereof and not on the date of accident. Since it hasbeen held that interest is required to be paid, the premise on which RathiMenon (supra) is based has changed. We are of the view that law inthe present context should be taken to be that the liability will accrue onthe date of the accident and the amount applicable as on that date will bethe amount recoverable but the claimant will get interest from the dateof accident till the payment at such rate as may be considered just andfair from time to time. In this context, rate of interest applicable inmotor accident claim cases can be held to be reasonable and fair. Onceconcept of interest has been introduced, principles of WorkmenCompensation Act can certainly be applied and judgment of 4-JudgeBench in Pratap Narain Singh Deo (supra) will fully apply. Whereverit is found that the revised amount of applicable compensation as on thedate of award of the Tribunal is less than the prescribed amount ofcompensation as on the date of accident with interest, higher of the twoamounts ought to be awarded on the principle of beneficial legislation.Present legislation is certainly a piece of beneficent legislation.[33]

15.4 Accordingly, we conclude that compensation will be payableas applicable on the date of the accident with interest as may beconsidered reasonable from time to time on the same pattern as inaccident claim cases. If the amount so calculated is less than the amountprescribed as on the date of the award of the Tribunal, the claimant willbe entitled to higher of the two amounts. This order will not affect theawards which have already become final and where limitation forchallenging such awards has expired, this order will not by itself be aground for condonation of delay. Seeming conflict in Rathi Menon (supra)and Kalandi Charan Sahoo (supra) stands explained accordingly. The4-Judge Bench judgment in Pratap Narain Singh Deo (supra) holdsthe field on the subject and squarely applies to the present situation.Compensation as applicable on the date of the accident has to be givenwith reasonable interest and to give effect to the mandate of beneficiallegislation, if compensation as provided on the date of award of theTribunal is higher than unrevised amount with interest, the higher of thetwo amounts has to be given.

33Prabhakaran Vijaya Kumar (supra) Para 12

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ARe: (ii) Application of Principle of Strict Liabillity – Conceptof Self Inflicted Injury 16.1 From the judgments cited at the Bar we do not see anyconflict on the applicability of the principle of strict liability. Sections124 and Section 124A provide that compensation is payable whether orBnot there has been wrongful act, neglect or fault on the part of the railwayadministration in the case of an accident or in the case of an ‘untowardincident’. Only exceptions are those provided under proviso to Section124A. In Prabhakaran Vijaya Kumar (supra) it was held that Section124A lays down strict liability or no fault liability in case of railwayaccidents. Where principle of strict liability applies, proof of negligenceCis not required. This principle has been reiterated in Jameela (supra).

16.2 Coming to the proviso to Section 124A to the effect that nocompensation is payable if passenger dies or suffers injury due to thesituations mentioned therein, there is no difficulty as regards suicide orattempted suicide in which case no compensation may be payable.DConflict of opinions in High Courts has arisen on understanding theexpression ‘self inflicted injury’ in the proviso. In some decisions it hasbeen held that injury or death because of negligence of the victim was atpar with self inflicted injury. We may refer to the decisions of HighCourts of Kerala in Joseph PT (supra), Bombay in Pushpa (supra) andEDelhi in Shayam Narayan (supra) on this point.

16.3. In Joseph PT (supra), the victim received injuries in thecourse of entering a train which started moving. Question was whetherhis claim that he had suffered injuries in an ‘untoward incident’ as definedunder Section 123(c) could be upheld or whether he was covered byFproviso to Section 124A clause (b). The High Court held that while inthe case of suicide or attempt to commit suicide, intentional act is essential.Since the concept of ‘self inflicted injury’ is distinct from an attemptedsuicide, such intention is not required and even without such intention ifa person acts negligently, injuries suffered in such an accident will amountto ‘self inflicted injury’. Relevant observations are :

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“Therefore, the two limbs of the Proviso should be construed tohave two different objectives to be achieved. We can understandthe meaning of the term “self-inflicted injury” not only from thesources provided by the dictionaries, but also from the context inwhich it is used in the statute. The term “self-inflicted injury”

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used in the statute can be deduced as one which a personsuffers on account of one’s own action, which is somethingmore than a rash or negligent act But it shall not be anintentional act of attempted suicide. While there may becases where there is intention to inflict oneself with injuryamounting to self-inflicted injury, which falls short of anattempt to commit suicide, there can also be cases where,irrespective of intention, a person may act with totalrecklessness, in that, he may throw all norms of caution to thewind and regardless to his age, circumstances, etc. act to hisdetriment. Facts of this case show that the appellant attempted toboard a moving train from the off side unmindful of his age andfully aware of the positional disadvantageous and dangers ofboarding a train from a level lower than the footboard of the train.It is common knowledge that the footboard and handrails at thedoors of the compartment are designed to suit the convenience ofthe passengers for boarding from and alighting to the platform.And at the same time, when a person is trying to board the trainfrom the non-platform side, he will be standing on the heap ofrubbles kept beneath the track and that too in a lower level. Furthermore, he will have to stretch himself to catch the handrails andstruggle to climb up through the footboard hanging beneath thebogie. The probability of danger is increased in arithmeticprogression when the train is moving. Visualising all these thingsin mind, it can only be held that the act of the appellant was theheight of carelessness, imprudence and foolhardiness. It isindisputable that the purpose of Section 124A of the Act is toprovide a speedy remedy to an injured passenger or to thedependants of a deceased passenger involved in an untowardincident. Section 124A of the Act provides for compensation to apassenger or his dependants who suffers injury or death, as thecase may be, in an untoward incident even where the untowardincident is not the consequence of any wrongful act, neglect ordefault on the part of the Railway Administration. To this extent,it can be said to be a no-fault liability. Even though the provisionsrelating to payment of compensation in the Act can be said to bea piece of beneficial legislation, it cannot be stretched too much toreward a person who acts callously, unwisely or imprudently. Thereis no provision of law brought to our notice permitting the A

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Apassengers to entrain from the non-platform side of the railwaytrack. However, the counsel for the respondent did not show anyprovision of law prohibiting the same. The question whether anact by which a passenger sustains injury while boarding a trainthrough the off side, is a self-inflicted injury or not depends on thefacts of each case. Merely because a person suffered injury inBthe process of getting into the train through the off side, it may notbe sufficient to term it as a self-inflicted injury, unless the factsand circumstances show that his act was totally imprudent,irrational, callous and unmindful of the consequences. All the factsand circumstances established in this case would show that theCact of the appellant was with full knowledge of the imminentpossibility of dangering his life or limb and therefore, it squarelycomes within the term “self-inflicted injury” defined in Section124A Proviso (b) of the Act.”

16.4 In Pushpa (supra) a hawker died in the course of boarding aDtrain. It was held that he was not entitled to compensation as it was acase of ‘self inflicted injury’. The relevant observations are :

“Such an attempt by a hawker has been viewed by the trial Courtas something amounting to criminal negligence on his part andalso an effort to inflict injuries to himself. The trial Court reasonedEthat if the deceased had to sell his goods by boarding a train, heshould have ensured to do so only when it was quite safe for himto get on to the train or otherwise he could have avoided catchingthe train and waited for another train to come. It also hinted thatthere was absolutely no compulsion or hurry for the deceased inthe present case to make an attempt to somehow or the otherFboard the train while it was gathering speed.”

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16.5 In Shyam Narayan (supra), same view was taken which isas follows :

“6(ii) I cannot agree with the arguments urged on behalf of theappellants/applicants in the facts of the present case because thereis a difference between an untoward incident and an act of criminalnegligence. Whereas negligence will not disentitle grant ofcompensation under the Railways Act, however, once thenegligence becomes a criminal negligence and self-inflicted injurythen compensation cannot be granted. This is specifically provided G

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in the first proviso to Section 124-A of the Railways Act whichprovides that compensation will not be payable in case the deathtakes place on account of suicide or attempted suicide, self inflictedinjury, bona fide passenger’s own criminal act or an act committedby the deceased in the state of intoxication or insanity.”

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 notmere negligence of any particular degree. Doing so would amount toinvoking the principle of contributory negligence which cannot be donein the case of liability based on ‘no fault theory’. We may in this connectionrefer to judgment of this Court in United India Insurance Co. Ltd.versus Sunil Kumar[34]laying down that plea of negligence of the victimcannot be allowed in claim based on ‘no fault theory’ under Section163A of the Motor Vehicles Act, 1988. Accordingly, we hold that deathor injury in the course of boarding or de-boarding a train will be an‘untoward incident’ entitling a victim to the compensation and will notfall under the proviso to Section 124A merely on the plea of negligenceof the victim as a contributing factor.

Re: (iii)Burden of Proof When Body Found on Railway Premises – Definition of Passenger :

17.1 Conflict of decisions has been pointed out on the subject. Asnoticed from the statutory provision, compensation is payable for deathor injury of a ‘passenger’. In Raj Kumari (supra) referring to thescheme of Railways Act, 1890, it was observed that since travellingwithout ticket was punishable, the burden was on the railwayadministration to prove that passenger was not a bonafide passenger.The Railway Administration has special knowledge whether ticket wasissued or not. 1989 Act also has similar provisions being Sections 55 and137. This view has led to an inference that any person dead or injuredfound on the railway premises has to be presumed to be a bona fidepassenger so as to maintain a claim for compensation. However, DelhiHigh Court in Gurcharan Singh (supra) held that initial onus to provedeath or injury to a bona fide passenger is always on the claimant.However, such onus can shift on Railways if an affidavit of relevantfacts is filed by the claimant. A negative onus cannot be placed on theRailways. Onus to prove that the deceased or injured was a bona fide A

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Apassenger can be discharged even in absence of a ticket if relevantfacts are shown that ticket was purchased but it was lost. The DelhiHigh Court observed as follows :

“3(ii) In my opinion, the contention of the learned counselfor the appellants/claimants is totally misconceived. The initialonus in my opinion always lies with the appellants/claimantsto show that there is a death due to untoward incident of abona fide passenger. Of course, by filing of the affidavit anddepending on the facts of a particular case that initial onuscan be a light onus which can shift on the Railways, however,it is not the law that even the initial onus of proof which hasto be discharged is always on the railways and not on theclaimants. I cannot agree to this proposition of law that theRailways have the onus to prove that a deceased was not abonafide passenger because no such negative onus is placedupon the Railways either under the Railways Act or theRailway Claims Tribunal Act & Rules or as per any judgmentof the Supreme Court. No doubt, in the facts of the particularcase, onus can be easily discharged such as in a case wheredeceased may have died at a place where he could not haveotherwise been unless he was travelling in the train and insuch circumstances depending on the facts of a particularcase it may not be necessary to prove the factum of thedeceased having a ticket because ticket as per the type ofincident of death can easily be lost in an accident. I at thisstage take note of a judgment of a leaned Single Judge ofthis Court in the case reported as Pyar Singh Vs. Union ofIndia 2007 (8) AD Del. 262 which holds that it is the claimantupon whom the initial onus lies to prove his case. I agree tothis view and I am bound by this judgment and not by theratio of the case of Leelamma (supra).”

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17.2 In Jetty Naga Lakshmi Parvathi (supra) same view wasGtaken by a single Judge of Andhra Pradesh after referring to the provisionsof the Evidence Act as follows :

“22. So, from Section 101 of the Indian Evidence Act, 1872,it is clear that the applicants, having come to the courtasserting some facts, must prove that the death of the deceased H

had taken place in an untoward incident and that the deathoccurred while the deceased was travelling in a train carryingpassengers as a passenger with valid ticket. Therefore, havingasserted that the deceased died in an untoward incident andhe was having a valid ticket at the time of his death, the initialburden lies on the applicants to establish the same. The initialburden of the applicants never shifts unless the respondentadmits the assertions made by the applicants. Such evidenceis lacking in this case. Except the oral assertion of A.W.1, noevidence is forthcoming on behalf of the applicants. The courtmay presume that the evidence which could be, and is notproduced, would, if produced, be unfavourable to the personwho withholds it. The best evidence rule, which governs theproduction of evidence in courts, requires that the bestevidence of which the case in its nature is susceptible shouldalways be produced. Section 114(g) of the Indian EvidenceAct, 1872 enables the court to draw an adverse presumptionagainst a person who can make available to the court, butobstructs the availability of such an evidence. The ClaimsTribunal, upon considering the material on record, rightlydismissed the claim of the applicants and there are no groundsin this appeal to interfere with the order of the Tribunal.”

17.3 In Kamrunnissa (supra), from the circumstances appearingin that case it was held that there was no evidence that the deceasedhad purchased the ticket. In the given fact situation of that case, thisCourt inferred that it was not a case of ‘untoward incident’ but a case ofrun over. It was observed :

“7. The aforestated report also reveals, that the body of thedeceased had been cut into two pieces, and was lying next to therailway track. The report further indicates, that the intestine ofthe deceased had come out of the body. The above factual positionreveals, that the body was cut into two pieces from the stomach.This can be inferred from the facts expressed in the inquest report,that the intestines of the deceased had come out of the body. It isnot possible for us to accept, that such an accident could havetaken place while boarding a train.

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A8. In addition to the factual position emerging out of a perusal ofparagraphs 7 & 8 extracted hereinabove, the report also reveals,that besides a pocket diary having been found from the person ofthe deceased a few telephone numbers were also found, butimportantly, the deceased was not in possession of any other article.This further clears the position adopted by the railway authorities,Bnamely, that the deceased Gafoor Sab, was not in possession of aticket, for boarding the train at the Devangere railway station.”

17.4 We thus hold that mere presence of a body on the Railwaypremises will not be conclusive to hold that injured or deceased was abona fide passenger for which claim for compensation could beCmaintained. However, mere absence of ticket with such injured ordeceased will not negative the claim that he was a bona fide passenger.Initial burden will be on the claimant which can be discharged by filingan affidavit of the relevant facts and burden will then shift on the Railwaysand the issue can be decided on the facts shown or the attendingDcircumstances. This will have to be dealt with from case to case on thebasis of facts found. The legal position in this regard will stand explainedaccordingly.

Re: (iv)Rate of Interest

18. As already observed, though this Court in Thazhathe PurayilESarabi (supra) held that rate of interest has to be at the rate of 6% fromthe date of application till the date of the award and 9% thereafter and9% rate of interest was awarded from the date of application inMohamadi (supra), rate of interest has to be reasonable rate at parwith accident claim cases. We are of the view that in absence of anyFspecific statutory provision, interest can be awarded from the date ofaccident itself when the liability of the Railways arises upto the date ofpayment, without any difference in the stages. Legal position in thisregard is at par with the cases of accident claims under the Motor VehiclesAct, 1988. Conflicting views stand resolved in this manner.

GThe appeal will stand disposed of accordingly.

Nidhi Jain

Appeal disposed of.

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