Negligence of a deceased passenger does not affect the strict liability for compensation under Section 124A of the Railways Act, as accidental falls while boarding a train are deemed untoward incidents.

JUDGMENT :

Sanjeeb K.Panigrahi, J.

1. The Appellants have preferred the present appeal assailing the judgment dated 01.11.2019 passed by the learned Railway Claims Tribunal, Bhubaneswar Bench, Bhubaneswar in OA(IIU)No.0052 of 2016.

I. FACTUAL MATRIX OF THE CASE

2. The brief facts of the case are as follows:

(i) On 12.04.2011, while the deceased was travelling as a bona fide passenger from Bamara to Jharsuguda Railway Station by Hatia- Jharsuguda Passenger train (Amended), on the way, all of a sudden, he accidentally fell from the said train at Bamara railway station and sustained injuries. He was immediately shifted to DDH Sundargath for further treatment, where he died while undergoing treatment. The applicants are the wife and parents of the deceased, sought compensation of Rs.4,00,000/-from the railway administration.

II. SUBMISSIONS ON BEHALF OF THE APPELLANTS

3. Learned counsel for the Appellants earnestly made the following submissions in support of his contentions:

(i) The RW-1 and RW-2, who were the eyewitnesses of the incident, deposed on their written statement that they noticed one person trying to board the running train No. 58161 in a hurry, for which he slipped and fell and sustained injury and died. The DRM report reveals that the deceased died at Platform No.1 when the train had started and was gaining speed, resulting in loss of life. While boarding a running train, the deceased died due to a sheer negligence and carelessness act, which is not covered under Section 123(c) of the Railways Act, which states about untoward incidents, and hence the railway is protected.

(ii) In the case of Jameela and Ors. Vs. Union of India , (2010) 12 SCC 443 decided on 27th August, 2010, by the apex Court that if it is 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. Because the liability to pay compensation is regardless of any wrongful act, neglect or default on the part of the railway administration, subject to the proviso where the railway has no liability to pay compensation reason enumerated in clauses (a) to (e).

(iii) In the present case, the death of the deceased is not due to suicide or a result of self-inflicted injury. It is not the case that he died due to a criminal act, or he was in a state of intoxication, or he was insane or died due to any natural cause or disease. The negligence on the part of the deceased is not the same thing as a criminal act mentioned in clause(c) to the proviso to section 124(A). A criminal act envisaged under clause (c) must have an element of malicious intent or mens rea. Boarding a speeding train at platform No. 1 at Bamra Station may be a negligent act, even a rash/carelessness act, but without anything else, it is certainly not a criminal act. Therefore, his falling from the train was, thus, clearly accidental in nature.

(iv) The apex court in Union of India vs. Prabhakaran Vijaya Kumar and others , 2008 INSC 577 interprets the expression "accidental falling of a passenger from a train carrying passengers" in two possible ways. The first being that it only applies when a person has actually got inside the train and there after falls down the train, while the second being that it includes the situation where a person is trying to board the train and falls down while trying to do so. The accident which did not occur because of any of the reasons mentioned in clauses (a) to (e) of the proviso to section 124(A), then it clearly covered by the main body