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PETITIONER: UNION OF INDIA AND ORS.

       Vs.

RESPONDENT: SUNIL KUMAR GHOSH.

DATE OF JUDGMENT21/08/1984

BENCH: THAKKAR, M.P. (J) BENCH: THAKKAR, M.P. (J) SEN, A.P. (J)

CITATION:  1984 AIR 1737            1985 SCR  (1) 555  1984 SCC  (4) 246        1984 SCALE  (2)376

ACT:      Indian Railways Act 1890, Section 82A-Scope of-Bogie of passenger  train   shunted  at   railway   station-Passenger travelling in bogie falling down from train and hand crushed by train-Railway’s liability for compensation-Extend of.      ’accident-What is-Explained.      Words and  Phrases: ’accident-Meaning  of-Section  82A, Indian Railways Act 1890.

HEADNOTE:      The respondent  was travelling  by train as a bona fide passenger. While  the bogie  in which  he was travelling was being shunted at a Railway Station, the respondent fell down from the  train near  the water  column at  the end  of  the platform and  his right hand was crushed by that part of the train which was being shunted.      The District  Judge did  not accept  the version of the respondent  that  the  bogie  in  which  he  was  travelling received a  sudden jerk  and  that  he  fell  down  on  that account, and dismissed the application for compensation,      In  appeal,   the  High   Court,  held  that  the  word ’accident’ in  section 82A  must mean  to include within its ambit all  incidents resulting  in the  death of  or  bodily injury to any passenger during his rail journey, occuring in the course  of working  of  a  railway,  if  it  involves  a passenger train  or apart  thereof, and awarded compensation on the  premise that  it was not essential to establish that there was  an ’accident to the train’ by which the passenger was travelling.      In the  Appeal  to  this  Court,  on  the  question  of liability of the Railway Administration under Section 82A of the Indian Railways Act, 1890. ^      HELD: 1.  The liability  under Section  82A will not be attracted in  the case  of a mishap or injury sustained by a passenger on  account of  falling down  whilst getting on or off a running or stationary train or sustained when he slips in a  compartment or  when something  falls  on  him  whilst travelling. All  such mishaps,  when not  connected with the accident 556 to the  train, or  a part  of it,  would be accidents to the

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passenger only.  And until  both the mishaps take place, one to  the  train,  and  another,  a  sympathetic  one  to  the passenger, the  liability under  section 82A of the Act will not be  attracted. So also, unless the loss or damage to the property of  a passenger  is attributable to the accident to the  train,   liability  under   Section  82A  will  not  be attracted. [562G-563A]      In the  instant case,  liability under Section 82A will not be  attracted, as  it cannot be said that there has been an accident  to the  train and the mishap has nexus with it. [562G]      2. The  philosophy of Section 82A appears to be to turn an existing  ’fault liability  into a  ’fault’ or  no fault’ liability. And  presumably in  order to  be  ’fair’  to  the passengers who pay the ’fare’ for a safe (safe from accident to the  train) journey,  the legislature,  with  an  eye  on social welfare,  has provided  for compensation by a summary proceeding and has made the liability fault-free. [561B-D]      3. That  the ’accident’ envisioned by the first part of Section 82A(1) is an accident ’to’ the ’train’ or ’a part of the  train’  is  self-evident.  The  Section  speaks  of  an accident by reason of either (1) collision or (2) derailment or (3) other accident to a train. [560G-H]      4. What is provided is compensation for death or injury caused or  loss sustained  on account  of accident  ’to’ the train. What  is ’not’  provided is compensation for death of the passenger  ’whilst’ travelling  or injury sustained by a passenger ’whilst  travelling on the train, say by reason of his own  act default  or misfortune, which has no nexus with the ’accident’  to the  train.’ What  the section does is to turn a  liability which  was contingent  on  fault  into  an ’absolute’ liability.  What however,  it does  not do, is to provide a free insurance cover to the person and property of a passenger  so that  compensation can  be claimed  for  the accidental death  of or  injury to the passenger and or loss or damage  to his  property even  when  there  has  been  no ’accident’ to the train carrying such a passenger. [561E-G]      5. An  accident is  an occurrence  or an event which is unforeseen and startles one when it takes place but does not startle one when it does not take place. It is the happening of the  unexpected, not the happening of the expected, which is called  an accident. An event or occurrence the happening of which  is ordinarily  expected in  the normal  course  by almost every one undertaking a rail journey cannot be called an ’accident’.  But the  happening of something which is not inherent in  the normal  course of  events and  which is not ordinarily expected to happen or occur is called a mishap or an accident.  A collision  of two  trains or derailment of a train or  blowing up  of a  train is  something which no one ordinarily expects  in the  course of a journey. That is why it  falls   within  the  parameters  of  the  definition  of accident. But a jolt to the bogie which is detached from one train and  attached  to  another  cannot  be  termed  as  an accident. No  shunting can take place without such a jerk or an impact at least when it is attached or annexed to a train by a shunting engine. if a passenger 557 tumbles  inside  the  compartment  or  tumbles  out  of  the compartment when  he is  getting inside  the compartment  or stepping out  of the  compartment it  cannot be said that an accident has  occurred to the train or part of the train. It is doubtless  an accident ’to the passenger’. But not to the train. [562B-F]

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Special  Leave  Petition (Civil) No. 11525 of 1983      From the  Judgment and Order dated the 10th March, 1983 of the Madhya Pradesh High Court in Misc. (First) Appeal No. 88 of 1979      M. S. Gujral and R. N. Poddar for the Petitioners.      The Judgment of the Court was delivered by      THAKKAR, J.  Two mishaps, one ’to the train’ by which a passenger is  travelling, and  another,  a  sympthetic  one, having nexus  with the former, and going arm-in-arm with it, ’to the  passenger’ himself, must occur in the course of the same transaction  in  order  to  attract  liability  of  the Railway Administration  under  Section  82A  of  the  Indian Railways  Act,   1890,  rightly  contends  counsel  for  the Railway.      The High  Court, in  our opinion,  was in  error in not upholding this  unexceptionable proposition  and in awarding compensation to  a passenger  on the premise that it was not essential to  establish that  there was  an ’accident to the train, by which the passenger was travelling.      Counsel for the Railway was fair enough (we very highly appreciate this  gesture) to state that it was on account of the erroneous  interpretation placed by the High Court which was likely  to give  rise to  untenable  claims  in  future, rather than  the relatively  small  amount  awarded  to  the passenger, that  the Railway  was obliged  to approach  this Court by  way of  the present  Special  Leave  Petition.  We declined to  interfere with  the operative order of the High Court in  exercise of  jurisdiction under  Art. 136  of  the Constitution of India having regard to the size of the award (both sides  would have  expended more  than the  amount  at stake in  litigation expenses  if  leave  was  granted)  but observed that  the view taken by the High Court in regard to the question of law involved in the matter was erroneous. We now 558 proceed to  articulate our  reasons in  support of  the view expressed by us.      The question  of interpretation  of Section  82A of the Act has arisen in the following contextual backdrop.      The respondent  was travelling by train in his capacity as a  bonafide passenger.  While  the  bogie  in  which  the respondent was  travelling was  being shunted  at a  Railway Station, the  respondent accidentally  fell  down  from  the train, near the water column at the end of the platform, and his right  hand was  crushed by that part of the train which was being shunted As to how exactly the respondent sustained the injury, the versions of the parties differ. The District Judge did  not accept the version of the respondent that the bogie in  which he was travelling received a sudden jerk and he fell  down on that account. The Railway Administration on the other  hand contended  that the respondent sustained the injury   in   the   manner   described   in   the   relevant contemporaneous record  (Assistant Station  Master’s  Diary) namely:           "the injury  was sustained  by  the  appellant  in      going to  the  rear  end  of  the  train  and  possibly      boarding one  of the  bogies which  was being  detached      during the  shunting operation  and in  this process he      appears to have been hit by the water column when these      bogies (a  part of  the train)  were being moved during

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    the shunting operation."      Now Section  82A of the Act in so far as material reads thus:-      "82A Liability of  Railway Administration in respect of           accidents to trains carrying passengers-      (1)  When in  the course  of working a railway accident           occurs, being either a collision between trains of           which one  is a  train carrying  passengers or the           derailment of  or other accident to a train or any           part of  a train carrying passengers then, whether           or not there has been any wrongful act, neglect or           default on the part of the railway administration 559           such as  would  entitle  a  person  who  has  been           injured or has suffered loss to maintain an action           and  recover   damages  in  respect  thereof,  the           railway administration  shall, notwithstanding any           other provision  of law to the contrary, be liable           to pay  compensation to the extent set out in sub-           section (2)  and to  that  extent  only  for  loss           occasioned by  the death of a passenger dying as a           result of  such accident,  and for personal injury           and loss,  destruction or deterioration of animals           or goods  by the  passenger and  accompanying  the           passenger in  his compartment  or  on  the  train,           sustained as a result of such accident.      (2)  This liability  of a  railway administration under           this  Section   shall  in  no  case  exceed  fifty           thousand rupees in respect of any one person." (Emphasis added).      In interpreting  Section  82A  the  High  Court  speaks thus:-           "The word  accident  therefore  according  to  its      ordinary  meaning,  which  must  be  given  to  it  and      construed in the context in which it is used in Section      82A must mean to include within its ambit all incidents      resulting in  the death  of or  bodily  injury  to  any      passenger during  his rail  journey, occurring  in  the      course of working a railway, if it involves a passenger      train or  a  part  thereof.  Any  incident  treated  as      railway accident  involving a  passenger train  by  the      public at large and the railway staff should be treated      to be  such an  accident, falling  within the  ambit of      Section 82A. Any mishap or misfortune in the working of      a railway involving a passenger train or a part thereof      resulting in  the death  of or  personal  injury  to  a      passenger travelling  therein, during  his rail journey      is an  accident within  the ambit  of Section 82A. This      will, of  course exclude  any incident  voluntarily and      consciously invited  by the  passenger, i.e. suicide by      jumping in front of the moving train."      In our opinion the High Court has shut its eyes to the 560 significance of  the  essential  precondition  engrafted  in Section 82A  in regard  to the ’accident, to the train’. Why we say so will become evident presently.      A ’body  scan’ of the aforesaid provision (Section 82A) reveals that:-      (1)  The machinery of the Section is set in motion only           provided there is an ’accident’.      (2)  The accident  must be ’to’ the  train’ or ’part of           the train’ carrying passengers.      (3)   The accident to the train carrying passengers may           be due to:           (a)  Collision of  two trains  one of which is the

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              train carrying passengers; or           (b)  derailment of such train; or           (c)  other accident ’to’ such a train.      (4)   In case  any passenger  travelling by  such train           dies, or  sustains any  injury to  his  person  or           property, as  a result  of or  on account  of such           accident to  the train  or a  part  of  the  train           carrying passengers,  compensation to  the  extent           provided in the Section will become payable.      (5)   Such compensation  will be  payable regardless of           whether or  not the accident to the train carrying           passengers is  due to  negligence or  fault on the           part of the railway administration.      That the  ’accident’ envisioned  by the  first part  of Section 82A  (i) is  an accident ’to’ the ’train’ or ’a part of the  train’ is  self-evident. The  Section speaks  of  an accident by reason of either (1) collision or (2) derailment or (3) other accident to a train. There is therefore no room for any ambiguity on that score. 561      So also  it  cannot  be  gainsaid  that  the  accident, adverted to  therein  cannot  refer  to  an  accident  to  a passenger ’whilst’  on a  passenger train  even if  the said train is  not at  all involved in any accident. Common sense and reason buttress this proposition, for, the philosophy of Section 82A  appears to  be  to  turn  an  existing  ’fault’ liability into a ’fault or no fault’ liability. Why? Because a carrier  who  transports  passengers  as  a  part  of  his business, when  he charges  fare,  impliedly  guarantees  to carry him with safety in so far as such safety is within his power. It  is within  his power  to transport  the passenger without an  accident to  the train,  for such an accident is not something which is ordinarily or in the normal course of events inherent in the running of a train. And presumably in order to  be ’fair’ to the passengers who pay the ’fare’ for a safe  (safe from  accident  to  the  train)  journey,  the legislature, with an eye on social welfare, has provided for compensation by  a  summary  proceeding  and  has  made  the liability fault-free.      But to  ensure safe  travel  is  not  to  "insure"  the passenger against  accident to  himself ’whilst’ travelling. The distinction  deserves  to  be  spot-lighted.  What  ’is’ provided is  compensation for death or injury caused or loss sustained on  account of  accident ’to’  the train.  What is ’not’ provided  is compensation  for death  of the passenger ’whilst’ travelling  or  injury  sustained  by  a  passenger ’whilst’ travelling  on the train, say, by reason of his own act, default,  or misfortune,  which has  no nexus  with the ’accident to  the train’.  In other  words what  the Section does is  to turn a liability which was ’contingent on fault’ into an ’absolute’ liability. What, however, it does not do, is to  provide a  free ’insurance  cover’ to  the person and property of  a passenger so that compensation can be claimed for the  accidental death  of or  injury  to  the  passenger and/or loss  or damage  to his  property even when there has been no ’accident’ to the train carrying such a passenger.      What is  the position  when a passenger falls down from the train  while the  bogie, in  which he  is travelling, is being shunted? Say, when he is standing in the door frame or his trying 562 to get in or get out of the train, on account of the jolt to the bogie  at the time of impact with the rest of the train? Is it  an accident  ’to the  train’ so  as  to  attract  the liability  under   Section  82A?  The  answer  substantially

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depends  on   the  answer   to  the  question:  what  is  an ’accident’? An  accident is  an occurrence or an event which is unforeseen  and startles one when it takes place but does not startle  one when  it does  not take  place. It  is  the happening of  the  unexpected,  not  the  happening  of  the expected, which  is called  an accident.  In other  words an event or  occurrence the  happening of  which is  ordinarily expected  in   the  normal   course  by   almost  every  one undertaking a  rail journey  cannot be called an ’accident’. But the  happening of something which is not inherent in the normal  course  of  events,  and  which  is  not  ordinarily expected to  happen or  occur, is  called  a  mishap  or  an accident. Now  a collision  of two trains or derailment of a train or  blowing up  of a  train is  something which no one ordinarily expects  in the  course of a journey. That is why it  falls   within  the  parameters  of  the  definition  of accident. But a jolt to the bogie which is detached from one train and  attached  to  another  cannot  be  termed  as  an accident. No  shunting can take place without such a jerk or an impact  atleast when it is attached or annexed to a train by a  shunting engine.  If a  passenger tumbles  inside  the compartment or  tumbles out  of the  compartment when  he is getting inside  the compartment,  or  stepping  out  of  the compartment, it cannot be said that an accident has occurred to the  train or  a part  of the  train. It  is doubtless an accident ’to the passenger’. But not to the train. Otherwise it will  have to be held that every time a bogie is detached in the  course of shunting operation and attached or annexed to a  train in  the course  of the  said operation the train meets with  an accident.  And if such an event or occurrence is to be ordinarily expected as a part of every day life, it cannot be  termed as an accident-accident to the train (or a part of it).      In the  case of  a mishap  to  the  passenger  in  such circumstances it  cannot be  said that  there  has  been  an accident to  the train and the mishap has nexus with it. The liability under  Section 82A will not therefore be attracted in such  cases. Or in the case of a mishap to a passenger in similar  circumstances,  such  as  an  injury  sustained  on account of  falling down  whilst getting on or off a running or  stationary  train  or  sustained  when  he  slips  in  a compartment  or   when  something   falls  on   him   whilst travelling. All such 563 mishaps, when  not connected with the accident to the train, or a  part of  it, would be accidents to the passenger only. And until both the mishaps take place, one to the train, and another, a  sympathetic, one to the passenger, the liability under Section 82A of the Act will not be attracted. So also, unless the  loss or damage to the property of a passenger is attributable to  the accident  to the train, liability under Section 82A will not be attracted.      In our opinion, Section 82A of the Indian Railways Act, 1890 is  not capable  of the  rather strained interpretation placed by  the High Court and the true position of law is as unfolded in  the discussion  made heretobefore.  That is the reason why  we have  been constrained  to observe  that  the decision of  the High Court is not correct, whilst disposing of the petition for special leave N.V.K. 564