S.R. Brahmbhatt, J.@mdashHeard learned Advocates for the parties. The appellant, who happen to be the original respondent in Claim Application Case No. OA 0900012, filed by the present respondents for compensation of Rs. 4,00,000 for the death of their son occurred on 25th December, 2008, have approached this Court by way of this First Appeal, challenging the judgment and order rendered by the Tribunal on 13th November, 2013, whereunder the claim is accepted with direction to pay simple interest @ 6% from the date of the application. The facts in brief as could be culled out from the memo of the appeal, as well as the judgment, indicate that the claimants'' son on whom they were dependent, was travelling in train No. 407 from Kalol to Ahmedabad on 25th December, 2008. He accidentally fell down between Kalol Saiej Shertha Railway Station at Km. No. 761/9, near LC Gate No. 233/8 and succumbed to his injuries. He was bona fide passenger holding ticket bearing G-2253 7034, which has been produced in the proceedings at Exh. A4. The respondent-Railway, contested the claim primarily on the ground that the accident could not be classified to be an ''untoward incident'' as such the same would not be falling under the purview of Section 123(c)(2) of the Railways Act. The Tribunal framed the following issues and answered as under:
Issues: 1.
"1. Whether the deceased was travelling as a bona fide passenger in train No. 407 on 25th December, 2008?
2. Whether the deceased met with an untoward incident within the meaning of Section 123(c)(2) of the Railways Act during his journey by train?
3. Whether the applicants are the dependents of the deceased?
4. Relief?
Findings:
1. In affirmative.
2. In affirmative.
3. In affirmative.
4. As per final order--Application is allowed."
2. After appreciating the evidences on record, the Tribunal came to the conclusion that the compensation as recorded in the order deserve to be allowed, which reads as under:
"On the facts and in the circumstances of this case,
I find it just and proper to apportion the compensation amount amongst the Applicants as under:
1. Ganpatbhai Narshibhai Parmar @ Vankar, Aged 52 years Rs. 2,00,000.
2. Laxmiben Ganpatbhai Parmar @ Vankar, Aged 47 years Rs. 2,00,000."
And the final order came to be made on 13th November, 2013, which is a subject matter of challenge before this Court in this First Appeal.
3. Ms. Archana U. Amin, learned Counsel appearing for the railway administration, invited this Court''s attention to the factum of occurrence of incident and the definition of untoward incident and submitted that the liability attached to the railway is wrongfully attached and, therefore, the compensation could not have been ordered.
4. Ms. Amin, learned Counsel for the railway administration, further contended that the untoward incident as defined would presupposes accidental falling from the train and in case, where the falling is not occurred, the same could not be said to have been attracting the liability clause on untoward incident.
5. Ms. Amin, learned Counsel for the railway administration, further contended that the Tribunal erroneously held that the incident falls under the provision of Section 124(A) of the Railways Act, 1989 without there being any ingredient available, so far as the untoward incident in question. The finding qua the absolute liability as envisaged under Section 124(A) of the Railways Act, 1989, would presupposes occurrence and accidents of untoward incident, as defined in Section 123(c)(2) and the present incident could not have been classified as such, so as to attach liability to the railway administration under Section 124(A) of the Railways Act, 1989.
6. Mr. Pandya, learned Counsel for the claimant-respondents, contended that the narrow interpretation suggested upon the provision of Sections 123(c)(2) and 124(A) of the Railways Act, 1989 is wholly unconceivable and unfortunate to say the least.
7. Mr. Pandya, learned Counsel for the claimant-respondents, placed heavy reliance upon the decision of the Bombay High Court rendered in the case of
8. Mr. Pandya, learned Counsel for the claimant-respondents, also relied upon the following authorities:
(1)
(2)
(3)
(4)
(5)
9. Mr. Pandya, learned Counsel for the claimant-respondents, has also relied on the judgment in the case of
10. This Court has heard learned Advocate for the parties and perused the order impugned. The provision of Sections 123, 124 and 124(A) need to be set but as under:
"123. Definitions--In this Chapter, unless the context otherwise requires--
(a) "accident" means an accident of the nature described in Section 124;
(b) "dependent" means any of the following relatives of a deceased passenger, namely--
(i) the wife, husband, son and daughter, and in case the deceased passenger is unmarried or is a minor, his parent;
(ii) the parent, minor brother or unmarried sister, widowed sister, widowed daughter-in-law and minor child of a predeceased son, if dependent wholly or partly on the deceased passenger;
(iii) a minor child of a pre-deceased daughter, if wholly dependent on the deceased passenger;
(iv) the paternal grandparent wholly dependent on the deceased passenger.
[(c) "untoward incident" means--
(1)(i) the commission of a terrorist act within the meaning of Sub-section (1) of Section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or
(ii) the making of a violent attach or the commission of robbery or dacoity; or
(iii) the indulging in rioting, shoot out or arson, by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station; or
(2) the accidental falling of any passenger from a train carrying passengers.]
124. Extent of liability--When in the course of working a railway, an accident occurs, being either a collision between trains of which one is a train carrying passengers or the derailment of or other accident to a train or any part of a train carrying passengers, 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 has suffered a loss 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 a passenger dying as a result of such accident, and for personal injury and loss, destruction, damage or deterioration of goods owned by the passenger and accompanying 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.
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 traveling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident."
11. The incident, which has been reported, clearly indicate that the findings recorded by the Tribunal cannot be said to be in any manner incorrect, as the ingredients, which are required to attract provision of Section 124(A) read with provision of Section 123(c)(2) are said to have been existing and therefore, the findings cannot be said to be in any manner require any interference.
12. The Court is unable to accept the submission canvassed at the Bar on behalf of the railway administration, that the untoward incident as defined under Section 123(c)(2) cannot be attracted, as the untoward incident as defined, would obviate the possibility to any overt act negligence on the part of the bona fide passenger. Learned Counsel for the railway administration, pressed into service in support of his submission the definition under Section 123(c)(2), but the reading of the entire provision in light of the provision of Section 124(A) and the exception enumerated therein, leaves no room of doubt to come to the conclusion that if the case is not falling under any of the exception then the absolute liability is required to be attached to the administration under Section 124(A) of the Railways Act, 1989 on the incident occurred. Such type of exception is not incorporated by the legislation and in case the submission of learned Counsel for the railway administration is accepted, the same would amount to incorporating one more exception, which has not incorporated by the legislation and that happened to be a case. The Court is unable to accept the learned Counsel''s submission as canvassed at the bar on behalf of the railway administration.
13. The appeal being bereft of merits, requires rejection and, accordingly, the same is rejected. However, there shall be no order as to costs. In view of the order passed in the main matter, no orders in Civil Application No. 192 of 2015.
The office is directed to place copy of this order in Civil Application No. 192 of 2015 also.
