Bombay High Court
Smt. Pushpabai Wd/O Sitaram Dongare vs Union Of India Thr. General Manager, … on 8 April, 2025
2025:BHC-NAG:3900
1 fa1230.24.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FIRST APPEAL NO.1230 OF 2024
Smt. Pushpabai Wd/o Sitaram Dongare
Aged about 62 years, Occ: Housewife,
R/o Mendaki, Tah. Warashiwani,
Dist. Balaghat (M.P.) ...APPELLANT
(Orig. Claimant
On R.A.
...V E R S U S...
Union of India,
Through General Manager,
South East Central Railway,
Bilaspur (C.G.) ...RESPONDENT
(Orig. respondent)
On R.A.
-------------------------------------------------------------------------------------------
Shi A.P. Murrey, Advocate for Appellant.
Ms A.S. Athalye, Advocate for respondent.
-------------------------------------------------------------------------------------------
CORAM :- M.W. CHANDWANI, J.
DATE :- 08/04/2025
ORAL JUDGMENT:
1. The appeal challenges the judgment and award dated
08.07.2016 passed by the Member, Railway Claims Tribunal,
Nagpur Bench, Nagpur (for short, “the Tribunal”) in Case
No.OA(llu)/NGP/2013/0074 thereby rejecting the claim of the
appellant filed under Section 124-A of the Railways Act, 1989.
The facts which are necessary to dispose of this appeal are
as under:
2. On 18.01.2013, bonafide passenger deceased Vijendra
Sitaram Dongare was travelling from Raipur to Gondia in Azad
2 fa1230.24.odtHind Express Train No.12130. When the train reached near
Pangoli river at railway bridge near km no.997/17-19, the
deceased fell down and sustained injuries on his head and body
and thereafter scummed to the injuries on the spot. The appellant,
the mother of the deceased filed claim petition under Section 124-
A of the Railways Act, 1989. The Tribunal rejected the claim of the
appellant on the ground that the accident occurred because the
deceased leaned out from the door of the train. The Tribunal
further held that this is criminal negligence on the part of the
deceased and therefore, it is outside the ambit of the expression
“untoward incident”.
3. Having heard the learned counsels for the respective
parties, having gone through the impugned award and the
documents available on record, it transpires that deceased
Vijendra Dongare died due to injuries suffered on his head as a
result of falling down from Azad Hind Express Train No.12130 on
18.01.2013. The enquiry report reveals that the deceased leaned
out of the train whereby, he sustained injuries and fell down from
the running train into the river. The Tribunal opined that the
deliberate act of leaning out and hanging out on the door of the
running train is criminal negligence and therefore, the incident is
3 fa1230.24.odt
not covered under the definition of ‘untoward incident’. The issue
has been dealt with by the Supreme Court in the famous case
Union of India Vs. Rina Devi 1 wherein in para 16.5 and 16.6 it
has been held as under:
“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 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.
1 AIR 2018 SC 2362
4 fa1230.24.odt
Ltd. versus Sunil Kumar 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 not
fall under the proviso to Section 124A merely on the plea of
negligence of the victim as a contributing factor.”
4. In view of the above said law enunciated by the Supreme
Court in the case of Rina Devi (supra), it cannot be said that this is
a criminal act committed by a bonafide passenger. At the most, it
can be said it is a negligent act on the part of the deceased but the
fact remains that the same will not help the Railways because the
compensation under Section 124-A is based on ‘No Fault Liability’
theory. In that scenario, even if the victim died due to his
negligent act in view of the theory of No Fault Liability, plea of
negligence of the victim as a contributory factor cannot be
considered. This aspect has not been considered by the Tribunal
and erroneously dismissed the claim petition filed by the
appellant.
5. This takes me to the submission of the learned counsel
for the respondent that since the claim has been filed before the
amendment to Railway Accidents and Untoward Incidents
5 fa1230.24.odt
(Compensation) Rules, 1990, the appellant will not be entitled to
the enhanced compensation of Rs.8,00,000/- which has been
made applicable from 01.01.2017. Evidently, the accident
occurred in the year 2013 and the claim petition was filed in the
year 2013; whereas, the Rules have been amended in the year
2017 during the pendency of the appeal. Pendency of appeal is
continuation of the proceedings and the Railways Act, 1989 being
a beneficial legislation, and therefore, the objection will not
sustain.
6. Reference can be made to the case of Rina Devi (supra)
in para 15.3 it has been held as under:
“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 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
6 fa1230.24.odtascertainable, 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 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
7 fa1230.24.odtbeneficial legislation. Present legislation is certainly a piece of
beneficent legislation. [Prabhakaran Vijaya Kumar (supra)
Para 12]”
7. Learned counsel for the respondent at this stage again
agitated that the appeal has been filed after passing of four years
of the impugned award. In wake of the findings of Rina Devi
(supra), the benefit of amended legislation shall not be extended
to those who did file the appeal within time.
8. To my mind, the said observations were made by Their
Lordships to curb the flood of petitions which have already
attained finality by awarding an amount of Rs.4,00,000/- as per
the pre-amended Rules. Here is not a case that the learned
Tribunal has awarded the amount of compensation as per pre-
amended Rules. Rather, the claim petition of the appellant met
with the fate of dismissal and to claim the amount entitled under
the Rules. The first appeal though, has been filed beyond the
period of limitation and after getting delay condoned, but
certainly, it is not filed to take the benefit of enhanced
compensation. Fortunately for the appellant, this appeal is being
disposed of after amendment to the Rules enhancing the
compensation amount. Therefore, I do not see any hurdle to grant
8 fa1230.24.odt
enhanced compensation to the appellant more particularly, when
the ratio laid down by the Supreme Court in the case of Rina Devi
(supra) was to grant higher of the two amounts i.e. the amount of
compensation at Rs.8,00,000/- or the amount of compensation at
Rs.4,00,000/- under pre-amended Rules plus interest till date.
Needless to mention that due to delay in filing the appeal, the
appellant will not be entitled to the interest on the delayed period.
A statement is made across the bar by the learned counsel for the
appellant that the amount of Rs.8,00,000/- will be higher than the
interest plus compensation of Rs.4,00,000/- after reducing the
period of delay in calculating the interest.
9. To conclude, the order passed by the learned Tribunal
does not sustain and is required to be set aside by allowing the
appeal. Accordingly, the impugned judgment and award dated
08.07.2016 passed by the Member, Railway Claims Tribunal,
Nagpur Bench, Nagpur in Case No.OA(llu)/NGP/2013/0074 is
quashed and set aside. The respondent shall be liable to pay
Rs.8,00,000/- (Rs. Eight lakh only) to the appellant towards
compensation on account of death of deceased Vijendra S/o
Sitaram Dongare.
9 fa1230.24.odt
10. The respondent is directed to deposit the compensation
of Rs.8,00,000/- (Rs. Eight lakh only) in this Court within eight
weeks from today.
11. Upon deposit, the appellant is permitted to withdraw the
same.
With this, the appeal stands disposed of.
JUDGE
Wagh
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