w w w . L a w y e r S e r v i c e s . i n

S. Sawhney (Wing Comm.) v/s U.O.I.

    FAO 143 of 1997

    Decided On, 17 February 2011

    At, High Court of Delhi


    For the Appellants : Ms. Kamini Jaiswal, Divyesh Pratap Singh, Advocates. For the Respondent : Kumar Rajesh Singh, Advocate.

Judgment Text

Mool Chand Garg, J. (Oral)

This is an appeal filed by the appellant who are dependents of the deceased Sub-Lt. Samir Sawhney, a Naval Officer, posted at Cochin who died in an untoward accident as claimed by the appellants while travelling from train No. 2625 ( Kerala Express) from Cochin to New Delhi. According to the appellants the death has taken place because of the accidental fall from the train on 16.10.94. The deceased sustained head injuries leading to death. The appellant was a bona fide passenger inasmuch as there is no dispute that he was having a valid ticket.

2. The case of the respondent in having denied the claim was that the deceased after getting down near Manikgarh station when the train stopped for sign

Please Login To View The Full Judgment!

l to watch a crane, went upto Guards brake and attempted to board the train when the train started and was standing on the footboard and excessively leaning outside and was hit by the signal post. In support of the aforesaid plea, they have relied upon the report of the Superintendent. However, admittedly, no evidence has been led by the respondent.3. The case of a person who might have been standing on the footboard, may be negligently, has been dealt with by the Honble Supreme Court in the case of Jameela & Ors. v. Union of India, 2010 ACJ 2453. In that case taking note of a similar fact with respect to a passenger who was travelling on a valid ticket, the Apex Court has interpreted provisions of Section 124A along with the explanation attached thereto and have observed as follows:"5. We are of the considered view that the High Court gravely erred in holding that the applicants were not entitled to any compensation under Section 124A of the Act, because the deceased had died by falling down from the train because of his own negligence. First, the case of the Railway that the deceased M. Hafeez was standing at the open door of the train compartment in a negligent manner from where he fell down is entirely based on speculation. There is admittedly no eyewitness of the fall of the deceased from the train and, therefore, there is absolutely no evidence to support the case of the Railway that the accident took place in the manner suggested by it. Secondly, even if it were to be assumed that the deceased fell from the train to his death due to his own negligence it will not have any effect on the compensation payable under Section 124A of the Act.6. Chapter XIII of the Railways Act, 1989 deals with the Liability of Railway Administration for Death and Injury to Passengers due to Accidents. Section 123, the first section of the Chapter, has the definition clauses. Clause (c) defines "untoward incident" which insofar as relevant for the present is as under:123 (c) untoward incident means-(1) (i) xxxxxxxx(ii) xxxxxxxx(iii) xxxxxxxx(2) the accidental falling of any passenger from a train carrying passengers.Section 124A of the Act provides 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 dependant 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.(emphasis added)xxx xxx xxx7. It is not denied by the Railway that M. Hafeez fell down from the train and died while travelling on it on a valid ticket. He was, therefore, clearly a "passenger" for the purpose of Section 124A as clarified by the Explanation. It is now to be seen, that under Section 124A the liability to pay compensation is regardless of any wrongful act, neglect or default on the part of the railway administration. But the proviso to the Section says that the railway administration would have no liability to pay any compensation in case death of the passenger or injury to him was caused due to any of the reasons enumerated in Clauses (a) to (e)8. Coming back to the case in hand, it is not the case of the Railway that the death of M. Hafeez was a case of suicide or a result of self-inflicted injury. It is also not the case that he died due to his own criminal act or he was in a state of intoxication or he was insane, or he died due to any natural cause or disease. His falling down from the train was, thus, clearly accidental.9. The manner in which the accident is sought to be reconstructed by the Railway, the deceased was standing at the open door of the train compartment from where he fell down, is called by the railway itself as negligence. Now negligence of this kind which is not very uncommon on Indian trains is not the same thing as a criminal act mentioned in Clause (c) to the proviso to Section 124A. A criminal act envisaged under Clause (c) must have an element of malicious intent or mens rea. Standing at the open doors of the compartment of a running train may be a negligent act, even a rash act but, without anything else, it is certainly not a criminal act. Thus, the case of the railway must fail even after assuming everything in its favour."4. The case of the appellant is squarely covered by the aforesaid judgment. This Court has also taken a similar view in the case of Smt. Vidyawati v. Union of India, FAO No. 418/2008 decided on 12.01.2011.5. In these circumstances, the appellants are entitled to compensation which in a case of death is fixed as per the schedule at 4,00,000/- along with interest w.e.f. 30 days of the death of the deceased along with interest which is fixed at 9% per annum from the date the compensation becomes payable.6. The amount payable by the respondent shall be deposited within three months from today with the Railway Claims Tribunal. However, if the deposit is not made then the entire amount i.e. the principal amount and interest will carry further interest @ 12 % per annum. The Tribunal will release the aforesaid amount to the appellants.7. With these observations the appeal is allowed and the judgment of the Railway Claims Tribunal dated 11.02.97 is set aside. There shall be no orders as to costs.Appeal allowed.

Already A Member?