P.S. Narayana, J.@mdashThe Union of India, represented by the General Manager, South Central Railway, Secunderabad, had preferred this Civil Miscellaneous Appeal u/s 23 of the Railway Claims Tribunal Act, against the order dated 17.03.2009 made in O.A.A. No. 231 of 2004 on the file of the Railway Claims Tribunal, Secunderabad Bench, at Secunderabad.
2. The Respondents in the Civil Miscellaneous Appeal filed cross objections being aggrieved of non-granting of interest to the applicants-claimants/cross objectors as claimed by them.
3. Heard Sri T.S. Venkataramana, the learned Standing Counsel representing the Appellant and Sri Subba Rao Korrapati, the learned Counsel representing the Respondents/applicants-claimants/cross objectOrs.
4. Sri T.S. Venkataramana, the learned Standing Counsel representing the Appellant would maintain that the Railway Claims Tribunal should have appreciated that the deceased-Kamalakar, fell down from a running train and the incident happened due to the negligence of the deceased and there was no fault on the part of the railway administration and hence, the compensation awarded cannot be sustained. The learned Counsel also would point out that the Tribunal ought to have seen that the deceased was holding a reservation ticket with berth traveling in reserved compartment and there will not be any possibility of any passenger falling from the train unless the passengers stands at the door of the running train and in the light of the same, the Tribunal should have negatived the relief. The learned Counsel also pointed out the relevant provisions of the Railways Act and would maintain that the order under challenge being unsustainable and therefore, the Civil Miscellaneous Appeal has to be allowed.
5. Per contra, Sri Subbarao Korrapati, the learned Counsel representing the Respondents/applicants-claimants/cross objectors, had taken this Court through the findings recorded by the learned Tribunal and would maintain that in the light of the convincing reasons recorded by the learned Tribunal, this is not a fit matter to be interfered with as far as the awarding of compensation is concerned. The learned Counsel also would further maintain that in the light of the view expressed by the Apex Court in Tahazhathe Purayil Sarabi and others Vs., Union of India and another , the Respondents/applicants-claimants/cross objectors are entitled to the interest and hence, the cross-objections has to be allowed.
6. Heard the learned Counsel on record.
7. Perused the oral and documentary evidence available on record and also the findings recorded by the learned Tribunal.
8. In the light of the submissions made by the learned Counsel on record, the following points arise for consideration in this Civil Miscellaneous Appeal:
(1) Whether the findings recorded by the learned Tribunal awarding compensation of Rs. 4,00,000/- to theRespondents/applicants-claimants/cross-objectors is to be confirmed or to be set aside in the facts and circumstances of the case?
(2) Whether the relief of interest prayed for by the Respondents/applicants-claimants/cross-objectors to be allowed or to be negatived in the facts and circumstances of the case?
(3) If so, to what relief the parties would be entitled to?
9. POINT Nos. 1 and 2:
For the purpose of convenience, these two points are being discussed together. The Respondents/applicants-claimants filed O.A.A. No. 231 of 2004 on the file of the Railway Claims Tribunal, (hereinafter in short referred to as "The Tribunal" for the purpose of convenience), Secunderabad Bench at Secunderabad claiming compensation of Rs. 4,00,000/- for the death of the deceased-Bandapalli Kamalakar (hereinafter referred to as "the deceased" for the purpose of convenience). The learned Tribunal, after appreciation of the oral and documentary evidence, granted the compensation of Rs. 4,00,000/- in favour of the Respondents/applicants-claimants/cross-objectors and the Appellant herein/Respondent in the aforesaid O.A.A. was directed to deposit the said amount before the learned Tribunal within 60 days from the date of the order, failing which, the Appellant/Respondent would be liable to pay interest at the rate of 9% per annum from the date of the order till the date of actual payment. Aggrieved by the same, the Appellant had preferred this Civil Miscellaneous Appeal and aggrieved by the negativing of the interest, the Respondents/applicants-claimants/cross objectors had preferred the cross objections.
10. It is the case of the Respondents/applicants-claimants/cross-objectors that on 01.10.2004, the deceased-Bandapalli Kamalakar with his other friends and classmates and along with their lecturers, started their journey to go to Hubli from Samalkot with a valid journey tickets (group reservation) by East Coast Express to catch the Train No. 7227 Amaravati express from Vijayawada and while traveling by Amaravati express from Vijayawada, the deceased accidentally slipped and fell down from the above said train near Cement Factory, KCC and Mangalagiri railway station, sustained injuries and died on the spot.
11. The Union of India represented by the General Manager, South Central Railway, Secunderabad, resisted the claim denying the allegations, referred to certain provisions of the Railways Act as well and had taken a specific stand that the said applicants-claimants are put to strict proof of the allegations made by them in the application.
12. On the strength of the pleadings of the parties, the following issues were settled:
(1) Whether the applicants are the dependents of the deceased?
(2) Whether the deceased was a bonafide passenger of train No. 7227 Amaravati express traveling from Samalkot to Hubli on 01.10.2004?
(3) Whether the deceased died as a result of an untoward incident of accident fall from the said train?
(4) Whether the applicants are entitled to claim compensation of Rs. 4 lakhs?
(5) To what relief?
13. On behalf of the applicants, A.W.1 and A.W.2 were examined and Exs.A.1 to A.6 were marked. On behalf of the Union of India, represented by the General Manager, South Central Railway, Secunderabad, R.W.1 the Senior Assistant Station Master was examined and Ex.R.1 was marked.
14. On appreciation of the evidence of A.W.1, A.W.2 and R.W.1 and Exs.A.1 to A.6 and Ex.R.1, the learned Tribunal, no doubt, awarded compensation of Rs. 4,00,000/- but however, directed the Respondent -Union of India to deposit the said amount before the learned Tribunal within 60 days from the date of the order, failing which, the Respondent to pay interest at the rate of 9% per annum from the date of the order till the date of actual payment.
15. In Balagoni Siva Prasad Vs., Union of India represented by General Manager, South Central Railway, Secunderabad , the learned Judge of this Court at paras 8, 9,10, 11, 12 and 13 observed as follows:
Section 124A of the Act renders the railways liable to pay the compensation for the injuries sustained in an untoward incident. Section 123[c][ii] defines an untoward incident as meaning among other things ''accidental fall of any passenger from a train carrying passengers''. Proviso to Section 124A, however, states ''no compensation shall be payable if the passenger suffers injury, due to among other things, self-inflicted injury''. Thus the combined reading of above two provisions would disclose that though a person is entitled to claim compensation for the injuries sustained in an untoward incident, which included accidental fall from the train, the railways are, however, not liable to pay such compensation when the passenger suffers injury which is self-inflicted.
Learned Counsel for the Appellant would invite the attention to the decision in ''union of India, rep. by
However, the Apex Court in Appeal (Civil) No. 6898 of 2002 in ''union of India v. Prabhakaran Vijayakumar and Ors. 2008 (6) SJ 209 on 5-5-2008, in similar circumstances held as follows:
we are of the opinion that it will not legally make any difference whether the deceased was actually inside the train when she fell down or whether she was only trying to get into the train when she fell down. In our opinion in either case it amounts to an ''accidental falling of a passenger from a train carrying passengers''. Hence, it is an ''untoward incident'' as defined in Section 123[c] of the Railways Act.
In the above case also, the deceased attempted to board the train and fell down from the running train and the Tribunal held that it was not an untoward incident within the meaning of expression of Section 123[c] of the Act. The High Court of Kerala held hat the deceased came within the expression ''accidental falling of a passenger from a train carrying passengers'', which is an untoward incident. The Apex Court held that ''in either case whether the deceased was actually inside the train when she fell down or she was only trying to get into the train, it amounted to accidental falling of a passenger from a train carrying passengers and hence, it is an untoward incident, within the meaning of Section 123[c] of the Act''. It was further held that ''since the provision for compensation in the Railways Act is a beneficial piece of legislation, it should receive a liberal and wider interpretation and not a narrow and technical one and the interpretation which advances the object of the statute and serves its purpose should be preferred.
'' it was further held as follows:
in our opinion, if we adopt a restrictive meaning to the expression ''accidental falling of a passenger from a train carrying passengers'' in Section 123[c] of the Railways Act, we will be depriving a large number of railway passengers from getting compensation in railway accidents. It is well known that in our country there are crores of people who travel by railway trains since everybody cannot afford traveling by air or in a private car. By giving a restrictive and narrow meaning to the expression we will be depriving a large number of victims of train accidents (particularly poor and middle class people) from getting compensation under the Railways Act. Hence, in our opinion, the expression ''accidental falling of a passenger from a train carrying passengers'' includes accidents when a bona fide passenger i. e. , a passenger travelling with a valid ticket or pass is trying to enter into a railway train and falls down during the process. In other words, a purposive, and not literal, interpretation should be given to the expression.
In the above case, the Apex Court held that ''death of the deceased while trying to board the train did not occur because of any of the reasons mentioned in Clauses (a) to (e) of the proviso to Section 124A and hence, the case was clearly covered by the main body of Section 124A of the Act''. It was further held that ''Section 124A lays down strict liability or no fault liability in case of railway accidents. Hence, if a case comes within the purview of Section 124A, it is wholly irrelevant as to who was at fault. '' In the above case also, the Apex Court rejected the contention of the Railways that there was no fault on their part and there was contributory negligence on the part of the deceased in trying to board the running train and therefore, the railways are not liable for compensation. In view of the principles laid down by the Apex Court in the above decision, which are squarely applicable to the facts of the present case, it must be held that the impugned order of the Tribunal rejecting the claim on the ground that the Appellant had fallen from the train due to his own negligence while boarding and therefore, the railways are not liable to pay compensation, in view of the exception contained in the proviso to Section 124A of the Act, is not sustainable and the same is accordingly set aside. As held by the Apex court in the above decision, the expression ''accidentally falling of a passenger from a train carrying passengers'' includes accidents when a bona fide passenger i. e. , a passenger travelling with a valid ticket or pass is trying to enter into a railway train and falls down during the process and in view of applicability of doctrine of strict liability in respect of claims arising u/s 124A of the act, it is wholly irrelevant as to who was at fault. The Respondent-Railways is therefore held liable to pay the compensation to the Appellant for the injuries sustained by him. Hence, the matter is remitted to the Tribunal for the purpose of fixing the appropriate amount of compensation payable to the Appellant.
16. In
A licensed Porter is not an employee under the Railways. Fact that licensed Porters are entitled to free travel in the Railways and Medical facilities, but such facility extended to licensed Porters do not make them employees. However, licensed porter is entitled compensation on account of death caused in an untoward incident u/s 124A. Under the Explanation to the Section 124A passenger is given a wide meaning to cover even a person who holds a platform ticket. This only means that for any person who suffers injury or death in the Railway premises and whose presence is authorized by the Railways. Railways is bound to compensate him as a passenger. Even though in the normal connotation of the word "passenger" it does not take in a licensed Porter, a licensed Porter is entitled to work in the railway premises by virtue of a licence given to him which certainly partakes the character of a platform ticket. A railway porter is exposed to all the inherent risks in a railway platform and station because he is licensed to work there. When a passenger and even a platform ticket holder is entitled to compensation for injury and death in an untoward incident, there can be no reason why a licensed Porter cannot be given the benefit because denial of the said benefit will be a violation of equality clause contained under Article 14 of the Constitution of India. The scheme of compensation u/s 124A is so wide that any person who is entitled to be present in the railway premises i.e.., either railway employees or those who have taken tickets or licenses are all covered by the said clause. Legal heirs of the deceased licensed Porter are entitled to compensation at the same rate as applicable to a passenger dying in an untoward incident.
17. In K.V. Thomas v. Union of India AIR 2008 Ker 153, it was observed at paras 2 and 3 as under:
Section 124A read as follows:
124A. 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 To claim compensation u/s 124A, it is not necessary to show that there is any negligence on the part of the railway administration. It is also not necessary to establish that the injured was not negligent. The negligence of either the Railway administration or that of the injured is not relevant u/s 124A. The negligence of the claimant cannot disentitle him from claiming compensation u/s 124A. Admittedly, the accident occurred not as a part of an attempt of suicide. It is not a self inflicted injury or he has not done any criminal act. Mere negligence on the part of the bona fide passenger is not a ground to deny the compensation for untoward incident. Like Section 163 of the Motor Vehicles act, strict liability is cast on the railway administration for payment of compensation. In the explanation to the Section, it is stated that even if a person has a platform ticket and became a victim of untoward incident, he will come within the Section. If there is an untoward incident in the course of working in a railway and if a passenger is injured or killed in such incident, the injured or the dependents of the passenger will be entitled to get compensation from Railway administration unless the passenger dies or suffers injury due to any of the reasons stated in (a) to (e) of the proviso to Section 124A. Since the claim of the passenger in this case does not come under (a) to (e) of proviso to Section 124A the claim cannot be rejected.
The ''untoward incident'' is defined u/s 123(c) which reads as follows:
(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; or
(2) the accidental falling of any passenger from a train carrying passengers''.
Certainly the injury was caused as a result of the untoward incident. It is not an intended injury. In the above circumstances, the railway administration is liable to pay compensation.
Next question is what is the amount of compensation payable. The amount of compensation payable is fixed under the Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 1997. As per the medical certificate produced, his left leg is amputated below knee. Under Schedule part III Item No. 20 of the Rules framed under Rule 3, for amputation below knee with stump exceeding 3?" but not exceeding 5", compensation payable is Rs. 2 lakhs. Apart from the above, his right leg was fully amputated. Right leg was amputated on the upper portion of femur. Part III Item No. 18 of Schedule of Railway Accidents and Untoward incidents (Compensation) Amendment rules, 1997, it is Rs. 2,80,000/ -. But under Rule 4, maximum compensation that can be granted is Rs. 4 lakhs. Therefore, Appellant is entitled to Rs. 4 lakhs as compensation with 7% interest from the date of application till its deposit, and on deposit of the amount, Appellant is allowed to withdraw the same.
18. Section 124A of the Railways Act reads as follows:
124A - 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 purpose 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.
19. Apart from the evidence of A.W.1, the evidence A.W.2 is also available on record. Ex.A.6 is no objection certificate issued by the Mandal Revenue Officer, Ramchandrapuram and it discloses the names of the applicants as the dependants of the deceased. Ex.A.3 is the original journey tickets. Ex.A.4 is the postmortem certificate. Ex.A.5 is the death certificate. Ex.A.1 is the First Information Report. Ex.A.2 is the Inquest Report also had been relied on. The evidence of A.W.1 and A.W.2 is clear and categorical.
20. As against this Evidence, R.W.1, who is the Senior Assistant Station Master stated that he received a message from Deputy Station Superintendent, Guntur that one person by name T.N.V.V. Kumar, aged about 18 years, traveling by Train No. 7227, Amaravathi express on 01.10.2004 belongs to Ideal College, Kakinada going on tour to Vasco fallen down from the train between Krishna Canal and Mangalagiri stations and in turn he gave message to GRP/Krishna Canal for taking necessary action.
21. This Court had carefully gone through the findings recorded by the learned Tribunal and does not see any illegality or legal infirmity warranting any interference whatsoever in relation to the awarding of compensation of Rs. 4 lakhs in favour of the applicants-claimants/Respondents/cross objectOrs.
22. The learned Counsel representing the cross-objectors placed strong reliance on the decision of the Apex Court reported in Tahazhathe Purayil Sarabi''s case (1 supra), wherein the Apex Court at paras 13, 17, 22 and 24 observed as under:
Admittedly, neither the Railway Claims Tribunal Act, 1987, nor the Railways Act, 1989, make provision for payment of interest on any awarded amount. While Section 16 of the 1987 Act prescribes the procedure for making an application to the Claims Tribunal, the right to receive compensation is contained in Sections 124 and 124A comprising Chapter XIII of the 1989 Act dealing with the liability of the Railway administration for death and injury to passengers due to accidents. Even though there is no provision in either of the Acts for payment of interest on the awarded sum, there is no denying the fact that the right to claim compensation accrued on the date of the incident, although, compensation has been held in Rathi Menon''s case (2001 ACJ 721 (SC) is to be computed from the date of the Award of the claims Tribunal. In cases where the statute does not make any specific provision for payment of interest on any awarded sum, the power of the Courts to grant interest can also be referred to from the provisions of the Interest Act, 1978 and the Code of Civil Procedure. Section 3 of the Interest Act 1978, which confers power on the Court to allow interest reads as follows:
3. Power of court to allow interest.-(1)In any proceedings for the recovery of any debt or damages or in any proceedings in which a claim for interest in respect of any debt or damages already paid is made, the court may, if it thinks fit, allow interest to the person entitled to the debt or damages or to the person making such claim, as the case may be, at a rate not exceeding the current rate of interest, for the whole or part of the following period, that is to say,-
(a) If the proceedings relate to a debt payable by virtue of written instrument at a certain time, then, from the date when the debt is payable to the date of institution of the proceedings;
(b) If the proceedings do not relate to any such debt, then, from the date mentioned in this regard in a written notice given by the person entitled or the person making the claim to the person liable that interest will be claimed, to the date of institution of the proceedings:
provided that where the amount of the debt or damages has bean repaid before the institution of the proceedings interest shall not be allowed under this section for the period after such repayment.
(2) Where, in any such proceedings as are mentioned in Sub-section (1), -(a) Judgment, order or award is given for a sum which, apart from interest on damages, exceeds four thousand rupees, and (b) The sum represents or includes damages in respect of personal injuries to the Plaintiff or any other person, or in respect of a person''s death, then, the power conferred by that Sub-section shall be exercised so as to include ill that sum interest on those damages or on such part of them as the court considers appropriate for the whole or part of the period from the date mentioned in the notice to the date of institution of the proceedings, unless the court is satisfied that there are special reasons why no interest should be given in respect of those damages.
(3) Nothing in this section, -(a) shall apply in relation to-(i) any debt or damages upon which interest is payable as of right by virtue of any agreement; or (ii) any debt or damages upon which payment of interest is barred, by virtue of all express agreement;
(b) Shall affect-(i) the compensation recoverable for the dishonour of a bill of exchange, promissory note or cheque, as defined in the Negotiable Instruments Act, 1881 (26 of 1881); or (ii) The provisions of Rule 2 of Order 11 of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908);
(c) Shall empower the court to award; interest
upon interest.
The Courts are consistent in their view that normally when a money decree is passed, it is most essential that interest be granted for the period during which the money was due, but could not be utilized by the person in whose favour an order of recovery of money was passed. As has been frequently explained by this Court and various High Courts, interest is essentially a compensation payable on account of denial of the right to utilise the money due, which has been, in fact, utilized by the person withholding the same. Accordingly, payment of interest follows as a matter of course when a money decree is passed. The only question to be decided is since when is such interest payable on such a decree. Though, there are two divergent views, one indicating that interest is payable from the date when claim for the principal sum is made, namely, the date of institution of the proceedings in the recovery of the amount, the other view is that such interest is payable only when a determination is made and order is passed for recovery of the dues. However, the more consistent view has been the former and in rare cases interest has been awarded for periods even prior to the institution of proceedings for recovery of the dues, where the same is provided for by the terms of the agreement entered into between the parties or where the same is permissible by statute.
In the instant case, the claim for compensation accrued on 13th November, 1998, when Kunhi Moosa, the husband of the Appellant No. 1, died on account of being thrown out of the moving train. The claim before the railway Claims Tribunal, Ernakulam, (O. A. No. 68/1999) was filed immediately thereafter in 1999. There was no delay on the part of the claimants/Appellants in making the claim, which was ultimately granted for the maximum amount of Rs. 4 lakhs on 26th march, 2007. Even if, the Appellants may not be entitled to claim interest from the date of the accident, we are of the view that the claim to interest on the awarded sum has to be allowed from the date of the application till the date of recovery, since the Appellant cannot be faulted for the delay of approximately 8 years in the making of the Award by the Railway claims Tribunal. Had the Tribunal not delayed the matter for so long, the Appellants would have been entitled to the beneficial interest of the amount awarded from a much earlier date and we see no reason why they should be deprived of such benefit. As we have indicated earlier, payment of interest is basically compensation for being denied the use of the money during the period which the same could have been made available to the claimants. We, therefore, allow the appeal and modify the order of the High Court dated 24. 5. 2007 affirming the order of the Trial Court and direct that the awarded sum will carry interest @6% simple interest per annum from the date of the application till the date of the Award and, thereafter, at the rate of 9% per annum till the date of actual payment of the same.
23. In the light of the same, the findings recorded by the learned Tribunal, awarding compensation of Rs. 4,00,000/- to be confirmed, and as far as the interest claimed in the cross-objections, the same to be permitted, awarding interest of 6% per annum from the date of the application till the date of award and at the rate of 9% per annum thereafter, from the date of the award till the date of realization.
25. POINT NO:3- In the result, the Civil Miscellaneous Appeal is dismissed and the cross-objections are allowed to the extent of granting interest at the rate of 6% per annum from the date of the application till the date of the award and at the rate of 9% per annum thereafter, from the date of the award till the date of realization. The parties do bear their own costs.
