‘Reportable’ IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1184 OF 2003

Jameela & Ors.                     Appellants

Versus

Union of India                      Respondent

JUDGMENT

AFTAB ALAM, J.

1. On June 23, 1997, the GRP found the dead body of a male person at  

Magarwara Railway Station. From the pockets of the deceased, the police  

recovered a telephone number, a railway ticket bearing no.35810970, dated  

June 21, 1997 and a receipt showing payment of excess fare for travelling in  

a sleeper coach. Information about the discovery of the dead body was given  

on the phone number and then it  came to light that he was a certain M.  

Hafeez, the husband of appellant no.1 and the father of appellant nos.2-5.

2. The appellants filed a claim case (OA 9700059) before the Railway  

Claims  Tribunal,  Lucknow  Bench,  claiming  a  compensation  of  

Rs.11,11,000.00 (rupees eleven lakhs and eleven thousand only) under the

Railways Act, 1989 (hereafter “the Act”) for the death of M. Hafeez. In the  

claim  application,  it  was  stated  that  the  deceased  was  travelling  from  

Ahmedabad to  Lucknow by Awadh Express  (Train  No.5064)  on  a  valid  

ticket and he fell down from the train at or near Magarwara Railway Station  

in an untoward incident resulting in his death. The applicants’ claim was  

contested by the General Manager, Northern Railway. The reply filed on his  

behalf is not on record, but from the Tribunal’s order it appears that in the  

reply  the  death of  M. Hafeez  and the validity  of  the  ticket  found in  his  

pocket were admitted. It was, however, stated that according to the railway  

records, no accident of any kind took place between Kanpur and Lucknow  

on June 23,  1997 and it  appeared  that  the  deceased  fell  down from the  

running train due to his own negligence. There was no negligence on the part  

of the railway. Further, that the applicants had not filed any proof of the  

accident.  

3. In view of the respective stands of the parties, the Tribunal framed the  

issue, whether the applicants were able to prove that the death of M. Hafeez  

was  due  to  an  “untoward  incident”  as  defined  under  section  123  of  the  

Railways  Act.  On a  consideration of  the  materials  brought  before it,  the  

Tribunal found and held that the claimant had proved that the death of M.  

Hafeez was due to an “untoward incident” as defined under section 123 of  

the  Act.  The  Tribunal,  then,  proceeded  to  consider  the  amount  of  

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compensation to which the applicants were entitled and found and held that  

under the Railway Accident (Compensation) Rules, 1990 (as it stood at the  

time of  the  accident),  the  maximum compensation  in  case  of  death  was  

Rs.2,00,000.00  (rupees  two  lakhs  only).  The  applicants  were,  therefore,  

entitled to the aforesaid amount only and not anything in excess of it,  as  

claimed by them. It, accordingly, passed its order.

4. Against the judgment and order passed by the Tribunal, the Railways  

preferred an appeal (FAFO No.277 of 1999) before the Lucknow Bench of  

the Allahabad High Court. A division bench of the High Court by judgment  

and order  dated November 6,  2001 allowed the appeal  and set  aside  the  

Tribunal’s order. Before the High Court, reliance was placed on behalf of  

the Railway on the proviso to section 124A of the Act which provides that  

no  compensation  will  be  payable  under  that  section  by  the  railway  

administration if the passenger died or suffered injury due to (a) suicide or  

attempted suicide by him, (b) self-inflicted injury or (c) his own criminal act.  

A reference was also made to section 154 of the Act which provides that if  

any person does any act in a rash and negligent manner, or omits to do what  

he is legally bound to do, and the act or omission is likely to endanger the  

safety  of  any  person  travelling  or  being  upon  any  railway,  he  shall  be  

punishable with imprisonment for a term which may extend to one year, or  

with fine, or with both. It was further contended on behalf of the Railway  

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that the deceased M. Hafeez who was travelling in a negligent manner was  

standing at the door from where he fell down near the Magarwara Railway  

Station, where the train does not stop. (It  needs  to  be  pointed  out  that  this  

contention could only be based on speculation, as admittedly there was no  

eyewitness to the accident). The High Court accepted the contentions raised  

on behalf of the Railway and allowed the appeal observing as follows:

“On  the  basis  of  the  law  &  facts  indicated  by  the  learned  counsel  for  the  parties,  we find  that  in  the  present  case  the  victim  is  to  be  blamed  for  the  incident  being  negligent and  therefore  this  case  is  not  covered  by  the  definition  of  the  untoward  incident.  However,  so  far  as  the  compensation  is  concerned the case of the claimant is covered by the provision  of  Section  124-A  as  because  of  his  own  negligence  the  deceased  had  fallen  down  from  the  train  which  caused  his   death. Further in the light of the fact that the deceased acted in  a negligent manner without any precaution of safety by station  going at the open door of the running train which resulted into  his death.”

                                                                         (emphasis added)

5. We are of the considered view that the High Court gravely erred in  

holding  that  the  applicants  were  not  entitled  to  any  compensation  under  

section 124A of the Act,  because the deceased had died by falling down  

from the train because of his own negligence. First, the case of the Railway  

that  the  deceased  M.  Hafeez  was standing at  the  open door  of  the  train  

compartment  in  a  negligent  manner  from where  he  fell  down is  entirely  

based on speculation. There is admittedly no eyewitness of the fall of the  

deceased from the train and, therefore, there is absolutely no evidence to  

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support the case of the Railway that the accident took place in the manner  

suggested by it. Secondly, even if it were to be 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 124 A of the Act.   

6. Chapter XIII of the Railways Act, 1989 deals with the Liability of  

Railway  Administration  for  Death  and  Injury  to  Passengers  due  to  

Accidents. Section 123, the first section of the Chapter, has the definition  

clauses. Clause (c) defines “untoward incident” which insofar as relevant for  

the present is as under:

“123 (c) untoward incident means-

(1)   (i) xxxxxxxx

      (ii) xxxxxxxx

      (iii) xxxxxxxx

(2) the accidental falling of any passenger from a train carrying  passengers.”

Section 124A of the Act provides as follows:

“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:

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         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.

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.”

                                                                 (emphasis added)

7. It  is not denied by the Railway that M. Hafeez fell  down from the  

train and died while travelling on it  on a valid ticket.  He was, therefore,  

clearly a “passenger” for the purpose of section 124A as clarified by the  

Explanation.  It is now to be seen, that under section 124A the liability to  

pay compensation is regardless of any wrongful act, neglect or default on the  

part of the railway administration. But the proviso to the section says that the  

railway administration would have no liability to pay any compensation in  

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case death of the passenger or injury to him was caused due to any of the  

reasons enumerated in clauses (a) to (e).

8.      Coming back to the case in hand, it is not the case of the Railway that  

the death of M. Hafeez was a case of suicide or a result  of self-inflicted  

injury. It is also not the case that he died due to his own criminal act or he  

was in a state of intoxication or he was insane, or he died due to any natural  

cause  or  disease.  His  falling  down  from  the  train  was,  thus,  clearly  

accidental.

9.     The manner in which the accident is sought to be reconstructed by the  

Railway,  the  deceased  was  standing  at  the  open  door  of  the  train  

compartment  from where  he fell  down, is  called by the railway itself  as  

negligence. Now negligence of this kind which is not very uncommon on  

Indian trains 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. Standing at the open  

doors of the compartment of a running train may be a negligent act, even a  

rash act but, without anything else, it is certainly not a criminal act. Thus,  

the  case  of  the  railway  must  fail  even  after  assuming  everything  in  its  

favour.  

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10. We are, therefore, constrained to interfere in the matter. The judgment  

and  order  of  the  High  Court  coming  under  appeal  is  set  aside  and  the  

judgment and order of the Tribunal is restored. Since a period of more than  

10 years has already elapsed from the date of the judgment of the Tribunal,  

the  compensation  money  along  with  interest  need  not  be  kept  in  fixed  

deposits,  but  should  be  paid  to  the  appellants  in  the  ratio  fixed  by  the  

Tribunal. The payment must be made within 2 months from today.  

11. In  the  result,  the  appeal  is  allowed,  with  costs  quantified  at  

Rs.30,000.00 (rupees thirty thousand only) payable to the applicants along  

with the compensation money.  

.……….……...................J.                                                     (AFTAB ALAM)          

………..……...................J.                                                  (R.M. LODHA)         

New Delhi August 27, 2010.

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