Union of India vs Sanjay Sampatrao Gaikwad & another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2002 Supreme(Bom) 213

IN THE HIGH COURT OF BOMBAY
R.J. Kochar, J.
Union of India .... Appellants.
Versus
Sanjay Sampatrao Gaikwad another.... Respondents.
First Appeal Nos. 177, 180 of 2002, decided on 27-2-2002.
Advocates appeared :
Anand Samant, in F.A. Nos. 177 180/2002, for appellants.
C.M. Tha, in F.A. No. 177/2002, for respondent.
C.J. Mohanrao, in F.A. No. 180/2002, for respondent.

Headnote:Railways Act, 1989 - Sections 123(c), 124 and 127 - Untoward incident - Hit by stone - Passenger travelling in train - Applicability of Administration - Held - There are three categories under Section 123(c) of Act regarding unto- wards incident - Hit by stone not covered under any of categories - Definition of untoward incident excludes all other incidents that might apparently be "untoward". - Analyzing the definition of untoward incident from any angle or in any manner I am not able to put in the said definition the act of an outsider or a stranger of throwing of a stone at the train running or standing still injuring any passenger. In my considered opinion such an event though a very unfortunate event cannot be put in the tight jacket of untoward incident which is lightly defined by the legislature to include only four events in the luggage of the definition of untoward incident. According to me, therefore, the incident of throwing of stone at the passengers in the present appeals does not amount to an untoward incident to attract Section 124-A of the Act for which the appellant railways can be made liable to pay compensation. Court failed to understand how the railways can be held for a stone thrown by an outsider at the running train or stand still train? If the mis- creant can be ought he can be punished in accordance with the criminal law of this country. Shri Jha has fairly pointed out that such miscreants can also be punished under this Act also. It is an uphill task for the Railway Administration to guard or man every point of its huge and large tracks in this country. No police or army can be posted at every point of the tracks to prevent throwing of the stones. It is for the people and the society to see that no stones are thrown at others including the trains. The railways cannot be held liable or responsible for the uncivic sense of the society. The railways are manning thousands of miles of track. It is not expected to man the entire track to prevent stone throwing at the passengers in the train. It would however be entirely different situation whether there is a riot or arson during which period miscreants and antisocial elements throw stones at the trains and cause damage to the railway property. If such a situation arises that has been taken care of by the legislature by inserting clause (ii) in Section 123(1) rioting and arson. In such an extraordinary situation the State is expected to handle the law and order problem and if during such situation the passengers get injured that would certainly be considered as untoward incident as that would be covered by Section 123(1)(ii) but a stray incident of stone throwing cannot be considered as untoward incident against which the railways cannot be expected to take any precaution. It would be totally unreasonable to expect the railways to guard against such incidents of stone throwing at the train. Though the safe and secure journey of passenger is an implied term of contract between the Railway Administration and the bona fide passenger and though the Railways Administration is strictly responsible to carry them to the agreed destination absolutely safely, it has its own inherent limitations. Even the doctrine of strict liability has exceptions as stipulated judiciall
Railways Act, 1989 - Sections 123(c), 124 and 127 - Civil Procedure Code, 1908, Section 34 - Compensation - Interest - Award of - From date of application - Challenged - Propriety of - Held - Amount of compensation to be determined by Tribunal under Section 127 of Act - Not payable as soon as claim filed - Payable from date of its determination - On failure of Railway to pay determined amount - Interest can be awarded from date of Award - Not from date of application. - It therefore cannot be said that as soon as the accident takes place the liability to pay compensation or damages is fastened on the railways. The liability is to be determined and decided by the Court of law and thereafter only the pecuniary liability to pay compensation fixed on the railways. The interest in such cases cannot be awarded prior to the determination of the amount of compen- sation and prior to deciding whether the railways are liable to pay the damages or compensation. At the first instance the Tribunal has to determine the question of liability and then the determine the amount of compensation. After doing so it can Award interest from the date of the decision but not prior thereto. It would be for the Tribunal to decide whether to grant interest and the rate of interest, if any. But it would be from the date of its decision and not prior thereto whether the applicant prays for interest or does not pray for interest. The Railway Administration has to pay interest if awarded by the Tribunal from the date the determination of the compensation under Section 127 of the Act.

JUDGMENT - R.J. KOCHAR, J.:---The appellants are the original respondents aggrieved by the judgment and order of the Railway Claims Tribunal at Mumbai passed on 25-7-2001 and 26-7-2001 respectively in the above two separate claim applications filed by the present respondents in the above Fist Appeals. The parties will be referred to as the appellants-railways and the applicant-passenger for the sake of convenience.

2. In view of the public importance of the issue involved in these matters instead of hearing the applications for interim orders and keeping the appeals in the cold storage of this Court I thought it proper and better to hear the appeals finally and dispose of the same by consent of the learned Advocates appearing for the parties. As the issue involved is common in both the appeals they are being disposed of by the present common judgment.

3. I have heard both the learned Advocates Shri Samant for the appellants-railways and Shri C.M. Jha and Shri Mohan Rao for respondents in the above matters respectively. In view of the importance of the issue and particularly the involvement of the public that would be finally affected both Shri Jha and Shri Mohan Rao have assisted the Court ably. Shri Samant has also fairly confined himself to the law points which have arisen in this matter and he has not canvassed any point beyond the pleadings and the law.

4. The dispute in both the appeals has arisen as under:

It is not material on what dates the alleged incident in both the appeals had taken place. The dates are different in both the appeals as correctly mentioned in the synopsis filed by the appellants-railways. The nature of the incident is similar. On two different dates the respondents-passengers at two different point of times were travelling by two different passenger Mail Trains. As far as the respondent-passenger in the First Appeal No. 177 of 2002 is concerned there is a dispute whether he was a "bona fide passenger" or not. In respect of the second appeal however, there is no dispute about the respondent-passenger being a "bona fide passenger". However, I am not entering into that controversy in these matters at this stage. However, there is no dispute in respect of the injury sustained by both the respondent-passengers. Both were injured during their journey in the train when they were hit by two different stones at two different point of time. There is no dispute that the stones were thrown from outside the Trains as a result of which the said passengers sustained injuries. Both were taken to hospital for treatment and were discharged after proper treatment at the instance of the railways.

The respondent-passengers filed a claim for compensation with the Railway Claims Tribunal at Mumbai claiming compensation for the injury sustained by them and claiming also reimbursement of the medical expenses and interest. The appellants-railways contested the claim by filing their written statements in both these matters. Oral and documentary evidence was adduced on behalf of both the parties. The learned Member of the Railway Claims Tribunal by the impugned judgment awarded compensation and reimbursement of medical expenses and also interest at the rate of 9% on the whole amount granted by the Tribunal with effect from the date of application. In First Appeal No. 177 of 2002 the Tribunal has granted a total sum of Rs. 97,948/- with interest at the rate of 9% from the date of application and costs. In the case of First Appeal No. 180 of 2002 the learned Members have awarded total compensation of Rs. 1,22,753/- including the medical expenses with interest at the rate of 9% p.a. from the date of the application with costs.

5. The appellants-railways are seriously aggrieved by the aforesaid orders of the Tribunal. Shri Samant the learned Counsel for the appellants-railways has summarised his attack on the impugned order as under :

(a) The incident of throwing of stone from outside the train hitting the passenger travelling by the

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2002 Supreme(Bom) 213

Cases Referred (4)