REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4945   OF 2018 (SPECIAL LEAVE PETITION (CIVIL)NO.10223  @ D.NO.6059 OF 2018)

UNION OF INDIA  …APPELLANT

VERSUS RINA DEVI         ...RESPONDENT

J U D G M E N T  

ADARSH KUMAR GOEL, J.

1. This appeal has been preferred against award of compensation

of Rs.4 lakhs under Section 124A of the Railways Act, 1989 (1989

Act).

2. The respondent filed claim for compensation for death of her

husband  Jatan  Gope  in  an  ‘untoward  incident’  on  20th August,

2002.  Her case is that the deceased had purchased a ticket of

second class for  Karauta  to  Khusrupur by train No.532.   He fell

down from the train due to rush of passengers and died on the

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spot. One Kailash Gope who witnessed the deceased purchasing

the ticket and boarding the train filed an affidavit  stating these

facts.  He was not cross-examined.  Case of the respondent is that

the ticket was not recovered from possession of the deceased as it

may have been lost somewhere.   

3. The claim was contested by the appellant.  It was stated that

the deceased was not a passenger but was wandering near the

railway track.   Cousin of the deceased who lodged FIR stated the

deceased was suffering from mental disorder and was wandering

in that state of mind.  However, he was not examined as a witness.

4. The Tribunal dismissed the claim on the ground that it was not

a  case  of  ‘untoward  incident’  but  a  case  of  ‘run  over’.   The

deceased was not a bona fide passenger.

5. The High Court set aside the order of the Tribunal by relying

upon the evidence of Kailash Gope who filed affidavit to the effect

that the deceased had purchased the ticket and had boarded the

train. The said witness has not been cross-examined. Reliance was

placed  on  a  Division  Bench  judgment  of  the  High  Court  in

Kaushalaya  Devi  versus  Union  of  India  through  General

Manager,  North  Eastern  Railway,  Gorakhpur,  U.P.1 to  the 1 PLJR 2008 (3), page 711

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effect that if a dead body is found in the precincts of the Railway

Station, there is a presumption that the deceased was a bona fide

passenger.  Onus to prove that he was a ticketless traveller was on

the Railway.  Judgment of this Court in Kamrunissa versus Union

of  India2  to  the  effect  that  the  ‘run  over’  was  different  from

‘untoward  incident’  was  distinguished.   Therein,  there  was  no

evidence  about  the  deceased  purchasing  the  ticket  as  in  the

present case.   

6. This appeal has been preferred mainly on the ground that the

claim  of  the  respondent  was  not  admissible  in  absence  of  an

‘untoward incident’ as defined under Section 123(c) of the 1989

Act as rightly held by the Tribunal.  Mere presence of body in the

precincts of the Railway was not enough to presume that he was a

bona fide purchaser particularly when no ticket was found from the

deceased.

7. Learned ASG made it clear that the appellant was interested

only in laying down of law on the subject even if the impugned

judgment was not disturbed.  Accordingly, we requested Shri Mukul

Rohtagi,  learned  senior  counsel  to  assist  the  court  as  Amicus,

instead of issuing notice to the respondent.  We do not propose to

2 AIR 2017 SC 1436  = 2017 SCC Online SC 304

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disturb the impugned judgment irrespective of its correctness and

we propose to consider the legal issue sought to be raised and the

issues that have been brought to our notice by the Railway Tribunal

as shown later.   

8. Vide  order  dated  13th March,  2018,  we  noted  the  issue  of

apparent conflict in  Rathi Menon versus Union of India3 and

Kalandi Charan Sahoo versus General Manager, South-East

Central Railway, Bilaspur4 as to the relevant date for applying

the rate of compensation when different rate is applicable at the

time of filing of claim and on the date of the order.  A submission

has  been filed  by the Registrar  Principal  Bench,  Railway Claims

Tribunal  seeking  clarification  on  four  subjects  which  repeatedly

arise before the said Tribunal i.e. :

(i) Quantum of compensation: It is stated that there is a

conflict  in  the  decisions  in  Rathi  Menon (supra)  and

Kalandi  Charan  Sahoo (supra)  which  needs

clarification.  We have already taken note of this issue.   

(ii) Definition  of  passenger:  Whether  any  person  found

dead near the track on Railway Precincts can be held to

3 (2001) 3 SCC 714, para 30 4 Civil Appeal No.5608 of 2017 decided on 25.4.2017

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be a bona fide passenger for maintainability of a claim

for compensation in absence of recovery of a ticket from

his body.  Conflicting decisions of Andhra Pradesh High

Court in Agam Shanthamma versus Union of India5;

Kerala  High  Court  in Union  of  India versus

Leelamma6;  Bombay  High  Court  (Nagpur  Bench)  in

Union of India versus Surekha7; Ramdhan versus

Union of India8; & Union of India versus Nandabai9;

Calcutta High Court in  Asharani Das versus Union of

India10;  and Madhya Pradesh High Court in Raj Kumari

versus Union of India11 are required to be resolved on

this subject.

(iii) The concept of self inflicted injury: Whether attempt

of getting into or getting down a moving train resulting in

an accident was a case of ‘self inflicted injury’ so as not

to entitle to any compensation or no such concept could

not  apply  under  the  scheme of  law which  casts  strict

liability  to  pay  compensation  by  the  Railway  under

5 (2004) ACJ 713 6 2009 (1) KLT 914 7 (2011) ACJ 1845 8 (2009) ACJ 2487 9 (2016) ACJ 411 102009 (2) CalLT 467  11 (1993) ACJ 846

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Sections 124 and 124A.  In this regard views of the High

Courts of Kerala in Joseph PT versus Union of India12,

Bombay in  Pushpa versus Union of India13 and Delhi

in  Shayam  Narayan  versus  Union  of  India14 may

appear to be against the decisions of this Court in Union

of  India  versus  Prabhakaran  Vijaya  Kumar15 and

Jameela versus Union of India16.

(iv) Award of interest.  The Act is silent about the interest.

In Thazhathe Purayil Sarabi versus Union of India17,

this  Court  held  that  the  CPC  could  be  invoked  and

interest awarded at the rate of 6% p.a. from the date of

application till  the  date  of  award and 9% p.a.  interest

from the  date  of  award  till  the  date  of  payment.   In

Mohamadi versus Union of India18 interest at the rate

of 9% was awarded without any difference between the

date of application and date of award or for subsequent

award.

12 AIR 2014  Kerala (12) 13 (2017) III ACC 799 (Bom) 14 (2018) ACJ 702 15 (2008) 9 SCC 527 16 (2010) 12 SCC 443 17 (2010) TAC 420 SC 18 (2011) ACJ 2356  

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9. An additional affidavit has been filed on behalf of the appellant

to the effect that judgment in  Rathi Menon  (supra) did not lay

down correct law to the effect that rate of compensation should be

as applicable on the date of order.  It is submitted that the said

judgment did not consider the decision of 4-Judge Bench decision

in  Pratap Narain Singh Deo versus Srinivas Sabata19 to the

effect that liability to pay compensation arises as soon as injury is

caused.  This was reiterated in  Kerala State Electricity Board

versus Valsala K.20.   Kerala High Court took the same view in

United India Insurance Company Ltd. versus Alavi21.

10. In  its  written  submissions,  the  appellant  has  dealt  with  the

issues of  quantum of compensation,  definition of passenger  and

strict  liability.   It  has  been  submitted  that  the  view  taken  in

Kalandi Charan Sahoo (supra) was a correct view.  Reference

has  also  been  made  to  the  view  taken  by  the  Railway  Claims

Tribunal,  Bangalore  Bench  in  its  judgment  dated  19th February,

2018 in Rahamath Ulla and Ors versus  Union of India22.  As

regards the definition of passenger and presumption to be drawn

from the dead body found on the railway premises without any

19 (1976) 1 SCC 289 20 (1999) 8 SCC 254 21 (1998) 3 LLN 285 22 Claim Application No.OA(II)U/168/2013  

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ticket, it is submitted that if no ticket is found from the body of the

person, presumption of being a bona fide passenger could not be

drawn.  Contra view of the Patna High Court in  Kaushalya Devi

(supra) was erroneous and view of Delhi High Court in Gurcharan

Singh versus Union of India23 and Andhra Pradesh High Court in

Jetty  Naga  Lakshmi  Parvathi  versus  Union  of  India24 was

correct law.  With regard to strict liability, it is submitted that a

distinction has to be drawn between an ‘untoward incident’ and a

‘run over’.   It  is  submitted that  in view of  Kamrunissa  (supra)

claimants should be put to strict proof of liabililty.  There are 38000

cases  pending  in  Tribunals.   Railway  administration  grants

compensation in all genuine cases.  If in spite of non recovery of

ticket, the claimant is exempted from the burden of proof and the

Railway is required to meet such claim, the liability of the Railway

will  increase disproportionately.   At present,  Railway was paying

approximately Rs.350 crores as compensation. There are 68,000

kilometers of railway tracks which are porous/unmanned resulting

in untoward incidents for which liability ought not to be fastened

on the Railways without valid proof of its liability.  Andhra Pradesh

High  Court  in  Union  of  India  versus  Kurukundu

23 (2015) ACJ 171 24 2013 ACJ 1061

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Balakrishnaiah25  rightly held that norms of evidence cannot be

completely ignored.   

11. Shri Rohtagi, learned Amicus submitted that the view taken in

Rathi  Menon  (supra)  ought  to  be  preferred  and  rate  of

compensation as on the date of the order should be applied.  He

submitted that in common law the amount becomes due on the

date  of  assessment  as  laid  down  in  Union  of  India  versus

Raman Iron  Foundry26 and   Kesoram Industries  & Cotton

Mills  Ltd.  versus  CWT  Central  Calcutta27.   Moreover,  the

present being case of a beneficial legislation, if two interpretations

are  possible  interpretation  beneficial  to  the  claimant  has  to  be

preferred,  consistent  with  the  law  laid  down  in  Prabhakaran

Vijaya  Kumar  (supra).   He  submitted  that  Workmen’s

Compensation Act (now named as Employee’s Compensation Act,

1923) was amended in the year 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  ensure  that  the  workman  is  able  to  get whatever  amount  the  employer  is  prepared  to pay  immediately  pending  a  decision  on  the amount of compensation actually due.

25 (2004) ACJ 529 26 (1974) 2 SCC 231, para 11 27 (1966) 2 SCR 688, para 33

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

12. This shows that intention of law is that compensation due is

only after a decision even though amount may be required to be

immediately paid.  In case compensation is not immediately paid,

Section 4A of the 1923 Act provides for interest and penalty.  Thus,

the rate applicable should be as on the date of order.

13. We  have  anxiously  considered  the  rival  submissions.   We

consider it necessary  to quote the relevant provisions of the 1989

Act :

“S.123.  Definitions.  -  In  this  Chapter,  unless  the context otherwise requires,- (a)  "accident"  means  an  accident  of  the  nature described in section 124; (b)    xxxx xxxx xxxx xxxx 1[(c) "untoward incident" means-- xxxx xxxx xxxx xxxx  (2) the accidental falling of any passenger from a train carrying passengers.] S.124.  Extent of liabililty -  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

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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. S.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.

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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.]”

14. In exercise of power under Section 129 of the 1989 Act, the

Central  Government  framed  rules  called  Railway  Accidents  and

Untoward  Incidents  (Compensation)  Rules,  1990.   The  rules

provided for a schedule prescribing the amount of compensation

payable in respect of death and injuries.  The said rules have been

amended  w.e.f.  1st January,  2017  by  notification  dated  22nd

December,  2016 substituting the schedule by higher amount  of

compensation.

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

(i) Whether the quantum of compensation should be as per the prescribed 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.

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Re: (i) Quantum of Compensation

15.1 In Rathi Menon (supra), this Court considered the

question whether the compensation to be applied would be as per

rules applicable on the date of the order or as per the rules in force

at the time of accident or the untoward incident.  Reversing the

view  taken  by  the  Kerala  High  Court  that  the  liability  to  pay

compensation arises as soon as accident happens and not when

the quantum is determined, this Court held that liability is to pay

compensation ‘as may be prescribed’ which means as on the date

of  the  order  of  the  Tribunal.   This  Court  observed  that  if

interpretation placed by the Kerala High Court was to be accepted

and  the  claimant  was  to  get  compensation  in  terms  of  market

value which prevailed on the date of the accident, the money value

of the compensation will be reduced value on account of lapse of

time. The revision of rate by the Central Government may itself

show that the money value has come down.   The Tribunal must

apply the rate applicable as per the rules at the time of making of

the order for payment of compensation28.  This Court distinguished

judgments  of  the  larger  Bench  in  Pratap  Narain  Singh  Deo

(supra),  P.A. Narayanan versus Union of India29 and  Maghar

28 Paras 29 and 30 29 (1998) 3 SCC 67

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Singh versus Jashwant Singh30.  It was observed that  Pratap

Narain  Singh  Deo  (supra)  and  Maghar  Singh  (supra)  were

judgments  under  the  Workmen  Compensation  Act  where  the

scheme was different as in the said Act there was a provision for

interest and penalty if  deposit was not made. Judgment in  P.A.

Narayanan (supra)  was  relied  upon  to  support  the  view  that

therein compensation was awarded even though accident was of a

date much earlier to the rules providing for compensation.   

15.2. Learned  ASG for  the  appellant  submitted  that  view in

Rathi  Menon  (supra)  stands  watered  down  by  subsequent

decisions  especially  in  Thazhathe  Purayil  Sarabi  (supra),

Mohamadi (supra) and Kalandi Charan Sahoo (supra).   Rathi

Menon (supra) was premised on the basis that there was no law

for interest and there will be injustice if compensation was paid at

money value which had got reduced by the time the compensation

was paid.  Factually interest was awarded in Rathi Menon (Supra).

It  was  on that  basis  that  judgments  in  Workmen Compensation

cases were held to be distinguishable though the said judgments

are  of  larger  Benches31.   Subsequently  in  Thazhathe  Purayil

Sarabi  (supra) it has been held by this Court, after referring to

30 (1998) 9 SCC 134 31 Para 33 of the judgment

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Rathi Menon  (supra), that right to claim compensation accrued

on the date of the incident though compensation is computed on

the date of the award of the Tribunal.  To compensate for loss of

money value on account of lapse of time and for the denial of right

to utilize the money when due, interest was required to be paid32.

Accordingly,  this  Court  directed  payment  of  interest  on  the

awarded sum from the date of application till the date of recovery.

This view was followed in Mohamadi (supra).  In Kalandi Charan

Sahoo (supra), without any specific discussion on the legal issue

involved, direction was issued for payment of compensation which

was applicable at the material time and the same was assumed to

be of Rs.4 lakhs.  In that case, the accident took place in the year

2005 and the award of the Tribunal was in 2009 i.e. prior to  1st

January, 2017.

15.3. Learned amicus has referred to judgments of this Court in

Raman Iron Foundry  (supra) and  Kesoram Industries  (supra)

to submit that quantum of compensation applicable is to be as on

the award of the Tribunal as the amount due is only on that day

and not earlier. In Kesoram Industries (supra), the question was

when for purposes of calculating ‘net wealth’ under the Wealth Tax

32 Para 26

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Act, 1957 provision for payment of tax could be treated as ‘debt

owed’ within the meaning of Section 2(m) of the said Act.  This

Court held that ‘debt’ was obligation to pay.  The sum payable on a

contingency,  however,  does  not  become  ‘debt’  until  the  said

contingency happens.  The liability to pay tax arises on 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 due

for purposes of valuation during the accounting year in question.

There is no conflict in the ratio of this judgment with the principle

propounded  in  Thazhathe  Purayil  Sarabi  (supra)  that  in  the

present context right to compensation arises on the date of the

accident.   In  Raman  Iron  Foundry  (supra),  the  question  was

whether a claim for unliquidated damages does not give rise to ‘a

debt’ till the liability is determined.   It was held that no debt arises

from  a  claim  for  unliquidated  damages  until  the  liability  is

adjudicated. Even from this judgment it is not possible to hold that

the liability for compensation, in the present context, arises only

on determination thereof and not on the date of accident.  Since it

has been held that interest is required to be paid, the premise on

which Rathi Menon (supra) is based has changed.  We are of the

view that law in the present context should be taken to be that the

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liability will  accrue on the date of the accident and the amount

applicable as on that date will be the amount recoverable but the

claimant will get interest from the date of accident till the payment

at such rate as may be considered just and fair from time to time.

In this context, rate of interest applicable in motor accident claim

cases can be held to  be reasonable and fair.   Once concept of

interest has been introduced, principles of Workmen Compensation

Act  can certainly  be applied and judgment of  4-Judge Bench in

Pratap Narain Singh Deo (supra) will fully apply.  Wherever it is

found that the revised  amount of applicable compensation as on

the  date  of  award  of  the  Tribunal  is  less  than  the  prescribed

amount of compensation as on the date of accident with interest,

higher of the two amounts 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

payable as applicable on the date of the accident with interest as

may be  considered  reasonable  from time to  time on the  same

pattern as in accident claim cases.  If the amount so calculated is

less than the amount prescribed as on the date of the award of the

33 Prabhakaran Vijaya Kumar (supra) Para 12

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Tribunal, the claimant will be entitled to higher of the two amounts.

This order will not affect the awards which have already become

final and where limitation for challenging such awards has expired,

this order will not by itself be a ground for condonation of delay.

Seeming conflict  in  Rathi Menon (supra) and  Kalandi Charan

Sahoo (supra) stands explained accordingly.  The 4-Judge Bench

judgment in Pratap Narain Singh Deo (supra) holds the field on

the  subject  and  squarely  applies  to  the  present  situation.

Compensation as applicable on the date of the accident has to be

given with reasonable interest and to give effect to the mandate of

beneficial legislation, if compensation as provided on the date of

award  of  the  Tribunal   is  higher  than  unrevised  amount  with

interest, the higher of the two amounts has to be given.

Re: (ii) Application  of  Principle  of  Strict  Liabillity  – Concept of Self Inflicted Injury

16.1 From the judgments cited at the Bar we do not see

any conflict on the applicability of the principle of strict liability.

Sections  124  and  Section  124A  provide  that  compensation  is

payable whether or not there has been wrongful act, neglect or

fault on the part of the railway administration in the case of an

accident or in the case of an ‘untoward incident’. Only exceptions

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are  those  provided  under  proviso  to  Section  124A.   In

Prabhakaran  Vijaya  Kumar  (supra)  it  was  held  that  Section

124A lays down strict liability or no fault liability in case of railway

accidents.   Where  principle  of  strict  liability  applies,  proof  of

negligence is not required.  This principle has been reiterated in

Jameela (supra).

16.2 Coming to the proviso to Section 124A to the effect

that no compensation is payable if passenger dies or suffers injury

due to the situations mentioned therein, there is no difficulty as

regards  suicide  or  attempted  suicide  in  which  case  no

compensation may be payable.  Conflict of opinions in High Courts

has arisen on understanding the expression ‘self inflicted injury’ in

the proviso.  In some decisions it has been held that injury or death

because of negligence of the victim was at par with self inflicted

injury.  We may refer to the decisions of High Courts of Kerala in

Joseph  PT  (supra),  Bombay  in  Pushpa  (supra)  and  Delhi  in

Shayam Narayan (supra) on this point.   

16.3. In Joseph PT (supra), the victim received injuries in the

course of entering a train which started moving.  Question was

whether his  claim that  he had suffered injuries  in an ‘untoward

incident’  as  defined  under  Section  123(c)  could  be  upheld  or 19

whether he was covered by proviso to Section 124A clause (b).

The High Court held that while in the case of suicide or attempt to

commit suicide, intentional act is essential.  Since the concept of

‘self  inflicted injury’  is  distinct  from an attempted suicide,  such

intention  is  not  required  and  even  without  such  intention  if  a

person acts negligently, injuries suffered in such an accident will

amount to ‘self inflicted injury’.  Relevant observations are :

“Therefore, the two limbs of the Proviso should be construed to  have two different  objectives  to  be achieved. We can understand the meaning of the term  "self-inflicted  injury"  not  only  from  the sources provided by the dictionaries, but also from the context in which it is used in the statute. The term "self-inflicted injury" used in the statute can  be  deduced  as  one  which  a  person suffers on account of one's own action, which is something more than a rash or negligent act But it shall not be an intentional act of attempted suicide. While there may be cases where  there  is  intention  to  inflict  oneself with injury amounting to self-inflicted injury, which  falls  short  of  an  attempt  to  commit suicide,  there  can  also  be  cases  where, irrespective  of  intention,  a  person  may  act with total recklessness,  in that, he may throw all norms of caution to the wind and regardless to his age, circumstances, etc. act to his detriment. Facts  of  this  case  show  that  the  appellant attempted  to  board  a  moving  train  from the  off side unmindful  of his  age and fully aware of  the positional  disadvantageous  and  dangers  of boarding  a  train  from  a  level  lower  than  the footboard of the train. It is common knowledge that the  footboard  and  handrails  at  the  doors  of  the

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compartment are designed to suit the convenience of the passengers for boarding from and alighting to  the  platform.  And  at  the  same time,  when  a person is trying to board the train from the non- platform side, he will be standing on the heap of rubbles kept beneath the track and that too in a lower level. Further more, he will  have to stretch himself to catch the handrails and struggle to climb up  through  the  footboard  hanging  beneath  the bogie.  The  probability  of  danger  is  increased  in arithmetic  progression when the  train  is  moving. Visualising all these things in mind, it can only be held that the act of the appellant was the height of carelessness,  imprudence and foolhardiness.  It  is indisputable that the purpose of Section 124A of the Act is to provide a speedy remedy to an injured passenger  or  to  the  dependants  of  a  deceased passenger  involved  in  an  untoward  incident. Section 124A of the Act provides for compensation to  a  passenger  or  his  dependants  who  suffers injury or death, as the case may be, in an untoward incident even where the untoward incident is not the consequence of  any wrongful  act,  neglect  or default on the part of the Railway Administration. To  this  extent,  it  can  be  said  to  be  a  no-fault liability.  Even  though  the  provisions  relating  to payment of compensation in the Act can be said to be  a  piece  of  beneficial  legislation,  it  cannot  be stretched too much to reward a person who acts callously,  unwisely  or  imprudently.  There  is  no provision of  law brought to our notice permitting the  passengers  to  entrain  from the non-platform side of the railway track. However, the counsel for the respondent did not show any provision of law prohibiting the same. The question whether an act by  which  a  passenger  sustains  injury  while boarding  a  train  through  the  off  side,  is  a  self- inflicted injury or not depends on the facts of each case.  Merely because a person suffered injury in the process of getting into the train through the off side, it may not be sufficient to term it as a self- inflicted injury, unless the facts and circumstances

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show that his act was totally imprudent, irrational, callous and unmindful of the consequences. All the facts  and  circumstances  established  in  this  case would show that the act of the appellant was with full  knowledge  of  the  imminent  possibility  of dangering his life or limb and therefore, it squarely comes within the term "self-inflicted injury" defined in Section 124A Proviso (b) of the Act.”

16.4 In  Pushpa  (supra) a hawker died in the course of

boarding  a  train.   It  was  held  that  he  was  not  entitled  to

compensation  as  it  was  a  case  of  ‘self  inflicted  injury’.   The

relevant observations are :

“Such an attempt by a hawker has been viewed by the trial Court as something amounting to criminal negligence on his part and also an effort to inflict injuries to himself. The trial Court reasoned that if the deceased had to sell his goods by boarding a train, he should have ensured to do so only when it was  quite  safe  for  him to  get  on  to  the  train  or otherwise he could have avoided catching the train and waited for another train to come. It also hinted that there was absolutely no compulsion or hurry for the deceased in the present case to make an attempt to somehow or the other board the train while it was gathering speed.”

16.5 In  Shyam Narayan (supra), same view was taken

which is as follows :

“6(ii) I cannot agree with the arguments urged on behalf  of  the appellants/applicants  in the facts  of the  present  case  because  there  is  a  difference

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between  an  untoward  incident  and  an  act  of criminal  negligence.  Whereas  negligence  will  not disentitle grant of compensation under the Railways Act,  however,  once  the  negligence  becomes  a criminal  negligence  and  self-inflicted  injury  then compensation cannot be granted. This is specifically provided in the first proviso to Section 124-A of the Railways Act which provides that compensation will not  be payable in  case the death takes place on account  of  suicide  or  attempted  suicide,  self inflicted injury, bona fide passenger's own criminal act  or  an  act  committed by 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  not  mere  negligence  of  any  particular  degree.

Doing so would amount to invoking the principle of contributory

negligence which cannot be done in the case of liability based on

‘no fault theory’.  We may in this connection refer to judgment of

this  Court  in  United India  Insurance Co.  Ltd.  versus  Sunil

Kumar34 laying down that plea of negligence of the victim cannot

be allowed in claim based on ‘no fault theory’ under Section 163A

of the Motor Vehicles Act, 1988.  Accordingly, we hold that death or

injury in the course of boarding or de-boarding a train will be an

‘untoward incident’ entitling a victim to the compensation and will

34 2017 (13) SCALE  652

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not fall under the proviso to Section 124A merely on the plea of

negligence of 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. As noticed from the statutory provision, compensation is

payable  for  death  or  injury  of  a  ‘passenger’.   In  Raj  Kumari

(supra)  referring  to  the  scheme  of  Railways  Act,  1890,  it  was

observed that since travelling without ticket was punishable, the

burden was on the railway administration to prove that passenger

was not  a bonafide passenger.   The Railway Administration has

special knowledge whether ticket was issued or not.  1989 Act also

has similar provisions being Sections 55 and 137.  This view has

led to an inference that any person dead or injured found on the

railway premises has to be presumed to be a bona fide passenger

so as to maintain a claim for compensation.  However, Delhi High

Court in Gurcharan Singh (supra) held that initial onus to prove

death or injury to a bona fide passenger is always on the claimant.

However, such onus can shift on Railways if an affidavit of relevant

facts is filed by the claimant.  A negative onus cannot be placed on

the Railways. Onus to prove that the deceased or injured was a

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bona fide passenger can be discharged even in absence of a ticket

if relevant facts are shown that ticket was purchased but it was

lost.  The Delhi High Court observed as follows :

“3(ii) In my opinion, the contention of the learned counsel  for  the  appellants/claimants  is  totally misconceived. The initial onus in my opinion always lies  with  the  appellants/claimants  to  show  that there is a death due to untoward incident of a bona fide passenger. Of course, by filing of the affidavit and depending on the facts of a particular case that initial onus can be a light onus which can shift on the Railways, however, it is not the law that even the initial onus of proof which has to be discharged is always on the railways and not on the claimants. I  cannot agree to this proposition of law that the Railways have the onus to prove that a deceased was  not  a  bonafide  passenger  because  no  such negative onus is  placed upon the Railways either under  the  Railways  Act  or  the  Railway  Claims Tribunal Act & Rules or as per any judgment of the Supreme  Court.  No  doubt,  in  the  facts  of  the particular case, onus can be easily discharged such as in a case where deceased may have died at a place  where  he  could  not  have  otherwise  been unless he was travelling in the train and in such circumstances  depending  on  the  facts  of  a particular case it  may not be necessary to prove the factum of the deceased having a ticket because ticket as per the type of incident of death can easily be lost in an accident. I at this stage take note of a judgment of a leaned Single Judge of this Court in the case reported as Pyar Singh Vs. Union of India 2007  (8)  AD Del.  262  which  holds  that  it  is  the claimant upon whom the initial onus lies to prove his case. I agree to this view and I am bound by this judgment  and  not  by  the  ratio  of  the  case  of Leelamma (supra).”

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17.2       In Jetty Naga Lakshmi Parvathi (supra) same view was

taken by a single Judge of Andhra Pradesh after referring to the

provisions of 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 court asserting some facts, must prove that the death of the deceased had taken place in an untoward incident and that the death occurred while  the  deceased  was  travelling  in  a  train carrying  passengers  as  a  passenger  with  valid ticket.  Therefore,  having  asserted  that  the deceased died in an untoward incident and he was having a valid ticket at the time of his death, the initial burden lies on the applicants to establish the same.  The  initial  burden  of  the  applicants  never shifts unless the respondent admits the assertions made by the applicants. Such evidence is lacking in this  case.  Except  the  oral  assertion  of  A.W.1,  no evidence is forthcoming on behalf of the applicants. The court  may presume that  the evidence  which could be, and is not produced, would, if produced, be unfavourable to the person who withholds it. The best evidence rule, which governs the production of evidence in courts, requires that the best evidence of which the case in its nature is susceptible should always be produced. Section 114(g) of the Indian Evidence Act, 1872 enables the court to draw an adverse  presumption  against  a  person  who  can make  available  to  the  court,  but  obstructs  the availability  of  such  an  evidence.  The  Claims Tribunal, upon considering the material on record, rightly  dismissed the claim of  the applicants  and there are no grounds in this appeal to interfere with the order of the Tribunal.”

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17.3       In  Kamrunnissa  (supra),  from  the  circumstances

appearing in that case it was held that there was no evidence that

the deceased had purchased the ticket.  In the given fact situation

of that case, this Court inferred that it was not a case of ‘untoward

incident’ but a case of run over.  It was observed :

“7.  The  aforestated  report  also  reveals,  that  the body of the deceased had been cut into two pieces, and was lying next to the railway track. The report further indicates, that the intestine of the deceased had  come  out  of  the  body.  The  above  factual position  reveals,  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 is not possible for us to accept, that such an accident could have taken place while boarding a train. 8. In addition to the factual position emerging out of a  perusal  of  paragraphs  7  &  8  extracted hereinabove, the report also reveals, that besides a pocket diary having been found from the person of the deceased a few telephone numbers were also found,  but  importantly,  the  deceased  was  not  in possession of any other article. This further clears the  position  adopted  by  the  railway  authorities, namely, that the deceased Gafoor Sab, was not in possession of a ticket, for boarding the train at the Devangere railway station.”

17.4       We thus hold that mere presence of a body on the Railway

premises will  not be conclusive to hold that injured or deceased

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was a bona fide passenger for which claim for compensation could

be maintained.  However, mere absence of ticket with such injured

or deceased will  not negative the claim that he was a bona fide

passenger.   Initial  burden will  be  on the claimant  which  can be

discharged by filing an affidavit of the relevant facts and burden will

then shift on the Railways and the issue can be decided on the facts

shown or the attending circumstances. This will  have to be dealt

with  from case  to  case  on  the  basis  of  facts  found.   The  legal

position in this regard will stand explained accordingly.

Re: (iv) Rate of Interest

18. As already observed, though this Court in Thazhathe Purayil

Sarabi (supra) held that rate of interest has to be at the rate of 6%

from the  date  of  application  till  the  date  of  the  award  and  9%

thereafter and 9% rate of interest was awarded from the date of

application  in  Mohamadi  (supra),  rate  of  interest  has  to  be

reasonable rate at par with accident claim cases.  We are of the

view that in absence of any specific statutory provision, interest can

be awarded from the date of accident itself when the liability of the

Railways arises upto the date of payment, without any difference in

the stages.  Legal position in this regard is at par with the cases of

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accident claims under the Motor  Vehicles  Act,  1988.   Conflicting

views stand resolved in this manner.

The appeal will stand disposed of accordingly.

…………………………………..J.                           [ ADARSH KUMAR GOEL ]

…………………………………..J.        [ ROHINTON FALI NARIMAN ]

NEW DELHI; MAY 09, 2018.

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