1. This is a claim application filedby the applicant/ injured Slim under Section 16 of the Railway Claims TribunalAct, 1987 read with Section 124-A of the Railways Act, 1989, seeking compensation to the tune of Rs. 15,00,000/-along-with interest from the respondent railway, on account of injuriessustained by him in an alleged untoward incident which occurred on 18/6/2019, while travelling in passengertrain.
2. The facts of the case as averred inthe claim application are that on 18/6/2019,the applicant/injured was going fromSaharanpur to Ambala Cantt by train to bring his daughter Gulista; thatapplicants elder son, Kaleem dropped him at railway station, Saharanpur in theearly morning on 18/6/2019, purchased a IInd class mail/express train journeyticket for the applicant /inured andhanded over the same to him; that he made the applicant board general classcompartment of the train; that there washeavy rush in the train; when the train in question was running, due to suddenjerk by the train, the applicant fell down at KM No. 220/23 (railway stationDarazpur), sustained grievous injuries besides crush injury and amputation to his both legs; that he wastaken to Civil Hospital, Yamunanagarwherefrom he was referred to PGI/Chandigarh; that GRP recorded his and hissons statement on 24/6/2019; that the ticket was lost since clothes were torn and blood stained duringthe incident which were taken off at Civil Hospital, Yamunanagar; that on19/6/2019 son of the victim went to Civil Hospital to get the torn clothes ofhis father but he was told that since the clothes were torn and blood stained,the same had been disposed of; that bothlegs of the applicant/injured were amputated. Thus claiming herself to be a bonafide passenger of the train and theincident coming with the purview of Untoward Incident, as defined under Section123(C) read with Section 124-A of theRailways Act, 1989, applicant has soughtcompensation along-with interest from the respondent railway.
3. The respondent-railway by way offiling written statement has raiseda number of objections on the groundthat no such incident within the meaning of Section 123(c) read with Section 124-A of the Railways Act causing injuries to thevictim, has taken place as such thepresent claim application is not maintainable; that the victim was not bonafide passenger of the train as noticket was produced by him for the alleged journey; that in his statement given to police he hasrevealed that the ticket was purchased by him from vending machine whereas inthe petition it is mentioned that the ticket was purchased by his son; that the victim had sustained injuries due tohis own negligence. On merits, variousaverments of the claim application are denied para-wise and a prayer is made to dismiss the claimapplication.
4. No replication was filed by theapplicant. On examination of pleadings of the parties, following issues wereframed for adjudication :-
1. Whether the injured/applicant was bonafide passenger of the train at the time of alleged incident
2. Whether the alleged incident is covered within the purview of untoward incident as defined under Section 123(c)(2) read with Section 124- A
3. What are the scheduled /non-scheduled injuries sustained by the applicant injured
4. Relief.
5. Inevidence, the applicant in support of her claim, has tendered various documentsi.e. Exbt. A-1 to Exbt. A-15. He was subjected to cross-examination by therespondents counsel.
6. Fromthe side of the respondent, DRMs inquiry report along-with other documents hasbeen placed on record.
7. We have heard learned counsel forboth the sides and have also perused the pleadings and the evidence on recordquite carefully. The findings on theabove issues are as under :-
ISSUES NO. 1 & 2
8. Both these issues being inter-connected, are taken up together for the sake of convenience and to avoid repetition of facts.
9. Brief facts of thecase as set out by the applicant arethat on 18/6/2019, the applicant/injured wastravelling from Saharanpur to Ambala Cantt. by train on the strength of a IIndclass valid railway journey ticket. When the train reached KM.No. 220/23, due to heavy rush and sudden jerk, he fell down fromthe train and received serious/ grievous injuries all over his body resulting into amputation ofhis both legs. The ticket was allegedly lostduring the incident.
10. Before we discuss thebonafide status of the victim, we would prefer to discuss issue No. 2 i.e.whether the incident is covered within the purview of untoward incident asdefined under section 123(c)(2) read with Section 124-A of the RailwayAct.
11. Applicant in his claim application as well as affidavitAW-1, has mentioned that while trying to board the train, he accidentally felldown from the train and sustainedinjuries.
12. To prove his case,applicant has placed on record Exbt. A-1, copy of the memo issued by Station Master Darazpur to Hospital Inchargewhich reads as under
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13. This document itself suffice the purpose of proving theapplicant having been victim of an accidental fall from the train. This witnesswas also called as Court Witness and he stated the same facts before thiscourt.
14. Further the incident occurred at Darazpur railway stationwhich was neither a scheduled stoppage of the train nor a destination of thevictim, however, as per DRMs report, train in question had slowed down due to signal at Darazpur railway station. Itis further in the DRMs report, that some passengers in order to deboard, askedthe applicant to give them side; the applicant stood on the footboard of thecoach by getting hold of handle of the door but due to sudden push by somepassenger, he fell down and sustained injuries.
15. Ld. Counsel for the respondent railway has vehemently arguedthat while trying to board the movingtrain, the applicant fell down andsustained injuries due to his own negligence and respondent railway isprotected under exceptional clause under section 124-A of the Railways Act andis not liable to pay compensation forthe injuries sustained by the applicant/injured.
16. However, this plea of the counsel for the respondent is notaccepted as the Railways Act fastens strict liability on the respondent and this plea of negligent act by the respondent has beendealt by the Honble Supreme Court in the case titled as Union of India vs. Rina Devi (Civil Appeal No. 4945 of 2018 decided onMay 9, 2018) wherein in para 16.6 of the judgment, the Honble Supreme Courthas observed as under :-
16.6 Weare unable to uphold the above view as the concept of self inflicted injurywould require intention to inflict such injury and not mere negligence of anyparticular degree. Doing so would amountto invoking the principle of contributory negligence which cannot be done inthe case of liability based on no fault theory. We may in this connection refer to judgmentof this Court in United India InsuranceCo. Ltd. Versus Sunil Kumar layingdown that plea of negligence of victim cannot be allowed in claim based on nofault theory under Section 163A of the Motor Vehicles Act, 1988...
17. Hence, it is proved beyond doubt that the applicant/injuredbecame victim of an untoward incident while trying to board the train.
18. Once happening of untoward incident coming within thepurview of Section 123(c)(2) read with Section 124- A is proved, the question before us is todecide whether he was a bonafidepassenger of the train at the time of incident.
19. Applicant in his claim application as well as affidavit AW-I,has stated on oath that the ticket, which was purchased by his son, Kaleem waslost during the incident. He was subjected to cross-examination by therespondents counsel.
20. Applicant has also filed affidavit AW-2 of Sh. Kaleem, whohas stated on oath that he has purchased ticket for his father and handed overthe same to him. Duringcross-examination, nothing contrary could be extracted from the witness
21. We find that by filing affidavit AW-1 and AW-2, applicanthas discharged his burden to establish that he was travelling on the strengthof a valid journey ticket. Once theclaimant proves his bonafide, the burden shifts upon the respondent railway tobring some concrete evidence on record to prove that the injured was aticketless passenger.
22. It is very much on record that both lower limbs of thevictim were crushed by the wheel of the train. It is also believable that in such like situation, the clothes wouldhave torn and blood stained and the same are usually taken off at the time ofadmission in the hospital for treatment. It is also believable that the ticket might have been lost during theincident or while shifting the victim to the hospital or while taking off theclothes of the victim in the hospital.
23. Otherwise also onceit is proved on record that the applicant was victim of an untoward incidentcoming within the purview of Section 123(c)(2) of the Railways Act, burden shifts upon the railways to prove that thevictim was ticketless at the time of incident.
24. In view of theabove position, it is proved beyond doubt that the injured applicant wastravelling on the strength of a valid journey ticket.
25. In view of the above discussion, based on evidence on recordboth issue No. 1 & 2 are decided in favour of the applicant/injured and against the respondent railway.
ISSUES NO. 3 & 4
26. Thesetwo issues being inter-related, are taken up for discussion simultaneously.
27. Asper Medical Record issued by the competent authority, and also from thepersonal appearance of the injured before this Tribunal, it is established thatthe applicant has sustained amputation of both his legs.
28. Theamount of compensation in respect of death/ injuries is governed by theRailways Accidents & Untoward Incidents (Compensation) Rules 1990 asamended by 1997 Rules. The injurysustained by the applicant in the present case is covered under entry No. 3 of Part III of the Schedule of Injuriesattached to above Rules. Therefore,the applicant/injured is held entitled to receive an amount of Rs. 8,00,000/- (Rs. Eight Lakh only ) as compensation for the injuries sustainedby him during the said untoward incident from the respondent railway. Resultantly, issue No. 3 and 4 are decidedaccordingly in favour of the applicant.
ORDER
29. Inthe result the present claimapplication is allowed on contest with an award of Rs.8,00,000/- (Rs. Eight Lakh only ) alongwith interest @ 9% fromthe date of accident till the date of payment.
30. Sofar as the distribution of award money to the applicant is concerned, We have heard ld. Counsel for theparties.
31. Itmay be noticed that in Geeta Devi vs.Union of India, Delhi High Court had observed as under :-
5. As Regards Amendment to the RailwayAccidents and Untoward Incidents (Compensation) Rules, 1990.
5.1.Many of the claimants are drawn from rural areas with low levels of literacyand lower levels of making appropriate decision for the use of amountsguaranteed under the awards. There areseveral instances of their exploitation by middlemen and touts operating in thefield. The scope for such exploitationis itself one of the incentives for fomenting bogus claims, fabricateddocuments and duplicate claims in different Benches of the Tribunal for thesame cause of action. The availabilityof bulk funds in the name of an ill-informed claimant is also a cause forexploitation. A scheme for protection ofthe amount due to such a claimant is the need of the hour. Earlier, this Court has involved 21Nationalised Banks in dialogue to evolve a scheme of annuities for disbursementof claims. They have been orderedalready to be implemented in this case vide directions passed on 22ndFebruary, 2019. This scheme as appliedto motor accident claims has been approved by the Supreme Court in its orderdt. 5th March,2019 in Krishnamurthi vs New Indian Insurance CompanySLP(C)No. 31521-31522 of 2017. Astatutory rule backing will therefore, best serve the interest of the litigantin the manner set out before
5.2 Insert following Rule 5 after Rule 4 :-
RuleNo. 5 : Mode of payment (1) The Tribunal may, in order to protect the sumawarded to the claimant, having due regard to the illiteracy or other disablingfactor impairing the judicious use of such sum issue directions for disbursingthe award in terms of annuities, fixed deposits or other suitable mode as shallsub serve justice.
(2)If any of the claimants is a minor or person of unsound mind, the Tribunal maygive liberty to the guardian ad litem to use the interest accruals on thedeposit that shall be made during the minority for maintenance.
(3) Nothing in this Rule shall limit the power ofthe Tribunal to make modification of the mode of disbursal for reasons to bestated in writing depending on the exigencies requiring liquidation of anycorpus created for annuity or premature closure of fixed deposit, for thebenefit of the claimant.
Inpursuance of the order passed by Delhi High Court, recently, Government of India has issued a Notificationon 3rd of June, 2020 amending Railway Accidents & UntowardIncidents (Compensation) Amendment Rules 2020 amending Rule 5 which reads asunder :-
5. MODE OF PAYMENT :-
5.1. The Tribunal may, in order to protect thesum awarded to the claimant, having due regard to the literacy or otherdisabling factors impairing the judicious use of such sum issue directions fordisbursing the award in terms of annuities, fixed deposit or other suitablemode as shall sub serve justice.
5.2 If any of the claimants is a minor orperson of unsound mind, the Tribunal may give liberty to the guardian ad litemto use the interest accruals on the deposit that shall be made during theminority for maintenance.
5.3 Nothing in this Rule shall limit the powerof the Tribunal to make modification of the mode of disbursal for reasons to bestated in writing depending on the exigencies requiring liquidation of anycorpus created for annuity or premature closure of fixed deposit, for thebenefit of the claimant.
5.4 The orders dated 21st April,2017, 24th May 2019, and 6th November, 2019 of HonbleHigh Court of Delhi in FAO No. 22/2015 and CM Application No. 4501/2015 in Geeta Devi Vs Union of India,relating to disbursement of compensation, shall be read as part of this rule.
32. Therefore,relying upon the judgment rendered by Honble Delhi High Court in the case of Geeta Devi and inpursuance of Rule 5 quoted above, in the present case, the amount of awardalong-with interest shall bedisbursed in the following manner:-
a) Applicant/injured shall receive anamount of Rs. 8,00,000/- (Rs. Eight Lakh only ) alongwith proportionate interest.
b) Out of the compensation amount awardedto applicant, 10% of the award money shall be disbursed immediately throughRTGS and the remaining amount shall bekept in Fixed Deposits on his name for three years.
c) The interest shall cease to accrue on the dateof this order.
I. Applicant is, hereby, directed tofurnish his fresh Bank Account particulars of the Nationalised Bank, as perColumn No. 13-A of his claimapplication, situated nearest to her place of residence, alongwith the originalMandate Form duly authenticated by the concerned Bank, self attested copies ofher Aadhar Cards, PAN cards etc. to the Presenting Officer, Chandigarh as wellas the Addl. Registrar, Railway Claims Tribunal, Chandigarh, within a period of30 days. The respondent after receivingthe aforesaid documents as well as bank account particulars pertaining to theapplicants from the Presenting Officer shall immediately transmit all thedetails of the applicant to the Addl. Registrar, RCT, Chandigarh, andthereafter will deposit the entire awarded compensation, through RTGS in theSuitors Account (ADR, RCT/Chandigarh) within a period of 60 days afterdeduction of TDS, if any
On any amount paid by way of deposit inthe Court or as directed under the decree, interest, if any, shall cease to runfrom the date of service of notice referred to in subrule (2) of Order XXI ofthe Code of Civil Procedure.
Thereafter, on receipt of the requisitedocuments as well as that of the awarded compensation amount qua the applicant,the ADR/RCT/CDG shall immediately disburse the compensation award amount, asdirected above, to the applicant, after following the laid down due procedure.
II. The accrual of interest shall cease onthis date of the order. However, in case the payment is not made by the respondent in the Suitors account within thetime prescribed, the interest shall start accruing again.
33. Consequently,the above claim application standsallowed with no orders as to the costs.
i) A copy of this order be sent to theapplicant free of cost.
ii) File be consigned to the record.
