Mere absence of ticket with such injured or deceased will not negative the claim

"Mere absence of ticket with such injured or deceased will not negative the claim that he was a bona fide passenger. Initial burden will be on the claimant which can be discharged by filing an affidavit of the relevant facts and burden will then shift on the Railways and the issue can be decided on the facts shown or the attending circumstances. This will have to be dealt with from case to case on the basis of facts found."

Refer page 27 of Union of India v Rina Devi [2018] GCtR 2426 (SC).

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4945 OF 2018

(SPECIAL LEAVE PETITION (CIVIL)NO.10223 @ D.NO.6059 OF 2018)

UNION OF INDIA …APPELLANT

VERSUS

RINA DEVI ...RESPONDENT

J U D G M E N T

ADARSH KUMAR GOEL, J

1. This appeal has been preferred against award of compensation

of Rs.4 lakhs under Section 124A of the Railways Act, 1989 (1989

Act).

2. The respondent filed claim for compensation for death of her

husband Jatan Gope in an ‘untoward incident’ on 20th August,

2002. Her case is that the deceased had purchased a ticket of

second class for Karauta to Khusrupur by train No.532. He fell

down from the train due to rush of passengers and died on the

spot. One Kailash Gope who witnessed the deceased purchasing

the ticket and boarding the train filed an affidavit stating these

facts. He was not cross-examined. Case of the respondent is that

the ticket was not recovered from possession of the deceased as it

may have been lost somewhere.

3. The claim was contested by the appellant. It was stated that

the deceased was not a passenger but was wandering near the

railway track. Cousin of the deceased who lodged FIR stated the

deceased was suffering from mental disorder and was wandering

in that state of mind. However, he was not examined as a witness.

4. The Tribunal dismissed the claim on the ground that it was not

a case of ‘untoward incident’ but a case of ‘run over’. The

deceased was not a bona fide passenger

5. The High Court set aside the order of the Tribunal by relying

upon the evidence of Kailash Gope who filed affidavit to the effect

that the deceased had purchased the ticket and had boarded the

train. The said witness has not been cross-examined. Reliance was

placed on a Division Bench judgment of the High Court in

Kaushalaya Devi versus Union of India through General

Manager, North Eastern Railway, Gorakhpur, U.P.

to the

1 PLJR 2008 (3), page 711

effect that if a dead body is found in the precincts of the Railway

Station, there is a presumption that the deceased was a bona fide

passenger. Onus to prove that he was a ticketless traveller was on

the Railway. Judgment of this Court in Kamrunissa versus Union

of India

to the effect that the ‘run over’ was different from

‘untoward incident’ was distinguished. Therein, there was no

evidence about the deceased purchasing the ticket as in the

present case.

....

8. Vide order dated 13th March, 2018, we noted the issue of

apparent conflict in Rathi Menon versus Union of India

and

Kalandi Charan Sahoo versus General Manager, South-East

Central Railway, Bilaspur

4 as to the relevant date for applying

the rate of compensation when different rate is applicable at the

time of filing of claim and on the date of the order. A submission

has been filed by the Registrar Principal Bench, Railway Claims

Tribunal seeking clarification on four subjects which repeatedly

arise before the said Tribunal i.e. :

(i) Quantum of compensation: It is stated that there is a

conflict in the decisions in Rathi Menon (supra) and

Kalandi Charan Sahoo (supra) which needs

clarification. We have already taken note of this issue.

(ii) Definition of passenger: Whether any person found

dead near the track on Railway Precincts can be held to

3 (2001) 3 SCC 714, para 30

4 Civil Appeal No.5608 of 2017 decided on 25.4.2017

be a bona fide passenger for maintainability of a claim

for compensation in absence of recovery of a ticket from

his body. Conflicting decisions of Andhra Pradesh High

Court in Agam Shanthamma versus Union of India

;

Kerala High Court in Union of India versus

Leelamma

; Bombay High Court (Nagpur Bench) in

Union of India versus Surekha

; Ramdhan versus

Union of India

; & Union of India versus Nandabai

;

Calcutta High Court in Asharani Das versus Union of

India

; and Madhya Pradesh High Court in Raj Kumari

versus Union of India

are required to be resolved on

this subject.

(iii) The concept of self inflicted injury: Whether attempt

of getting into or getting down a moving train resulting in

an accident was a case of ‘self inflicted injury’ so as not

to entitle to any compensation or no such concept could

not apply under the scheme of law which casts strict

liability to pay compensation by the Railway under

5 (2004) ACJ 713

6 2009 (1) KLT 914

7 (2011) ACJ 1845

8 (2009) ACJ 2487

9 (2016) ACJ 411

102009 (2) CalLT 467

11 (1993) ACJ 846

Sections 124 and 124A. In this regard views of the High

Courts of Kerala in Joseph PT versus Union of India

Bombay in Pushpa versus Union of India

13 and Delhi

in Shayam Narayan versus Union of India

may

appear to be against the decisions of this Court in Union

of India versus Prabhakaran Vijaya Kumar

and

Jameela versus Union of India

(iv) Award of interest. The Act is silent about the interest.

In Thazhathe Purayil Sarabi versus Union of India

this Court held that the CPC could be invoked and

interest awarded at the rate of 6% p.a. from the date of

application till the date of award and 9% p.a. interest

from the date of award till the date of payment. In

Mohamadi versus Union of India

interest at the rate

of 9% was awarded without any difference between the

date of application and date of award or for subsequent

award.

....

13. We have anxiously considered the rival submissions. We

consider it necessary to quote the relevant provisions of the 1989

Act :

“S.123. Definitions. - In this Chapter, unless the

context otherwise requires,-

(a) "accident" means an accident of the nature

described in section 124;

(b) xxxx xxxx xxxx xxxx

1[(c) "untoward incident" means--

xxxx xxxx xxxx xxxx

(2) the accidental falling of any passenger from a train

carrying passengers.]

S.124. Extent of liabililty - When in the course of

working a railway, an 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 such as would entitle a passenger who

has been injured or has suffered a loss 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 a

passenger dying as a result of such accident, and for

personal injury and loss, destruction, damage or

deterioration of goods owned by the passenger and

accompanying him in his compartment or on the train,

sustained as a result of such accident.

Explanation.--For the purposes of this section

"passenger" includes a railway servant on duty.

S.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:

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;

(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.]”

14. In exercise of power under Section 129 of the 1989 Act, the

Central Government framed rules called Railway Accidents and

Untoward Incidents (Compensation) Rules, 1990. The rules

provided for a schedule prescribing the amount of compensation

payable in respect of death and injuries. The said rules have been

amended w.e.f. 1st January, 2017 by notification dated 22nd

December, 2016 substituting the schedule by higher amount of

compensation

Re: (i) Quantum of Compensation

15.1 In Rathi Menon (supra), this Court considered the

question whether the compensation to be applied would be as per

rules applicable on the date of the order or as per the rules in force

at the time of accident or the untoward incident. Reversing the

view taken by the Kerala High Court that the liability to pay

compensation arises as soon as accident happens and not when

the quantum is determined, this Court held that liability is to pay

compensation ‘as may be prescribed’ which means as on the date

of the order of the Tribunal. This Court observed that if

interpretation placed by the Kerala High Court was to be accepted

and the claimant was to get compensation in terms of market

value which prevailed on the date of the accident, the money value

of the compensation will be reduced value on account of lapse of

time. The revision of rate by the Central Government may itself

show that the money value has come down. The Tribunal must

apply the rate applicable as per the rules at the time of making of

the order for payment of compensation28. This Court distinguished

judgments of the larger Bench in Pratap Narain Singh Deo

(supra), P.A. Narayanan versus Union of India

29 and Maghar

28 Paras 29 and 30

29 (1998) 3 SCC 67

Singh versus Jashwant Singh

. It was observed that Pratap

Narain Singh Deo (supra) and Maghar Singh (supra) were

judgments under the Workmen Compensation Act where the

scheme was different as in the said Act there was a provision for

interest and penalty if deposit was not made. Judgment in P.A.

Narayanan (supra) was relied upon to support the view that

therein compensation was awarded even though accident was of a

date much earlier to the rules providing for compensation.

15.2. Learned ASG for the appellant submitted that view in

Rathi Menon (supra) stands watered down by subsequent

decisions especially in Thazhathe Purayil Sarabi (supra),

Mohamadi (supra) and Kalandi Charan Sahoo (supra). Rathi

Menon (supra) was premised on the basis that there was no law

for interest and there will be injustice if compensation was paid at

money value which had got reduced by the time the compensation

was paid. Factually interest was awarded in Rathi Menon (Supra).

It was on that basis that judgments in Workmen Compensation

cases were held to be distinguishable though the said judgments

are of larger Benches31. Subsequently in Thazhathe Purayil

Sarabi (supra) it has been held by this Court, after referring to

30 (1998) 9 SCC 134

31 Para 33 of the judgment

Rathi Menon (supra), that right to claim compensation accrued

on the date of the incident though compensation is computed on

the date of the award of the Tribunal. To compensate for loss of

money value on account of lapse of time and for the denial of right

to utilize the money when due, interest was required to be paid32

Accordingly, this Court directed payment of interest on the

awarded sum from the date of application till the date of recovery.

This view was followed in Mohamadi (supra). In Kalandi Charan

Sahoo (supra), without any specific discussion on the legal issue

involved, direction was issued for payment of compensation which

was applicable at the material time and the same was assumed to

be of Rs.4 lakhs. In that case, the accident took place in the year

2005 and the award of the Tribunal was in 2009 i.e. prior to 1st

January, 2017.

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

32 Para 26

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 ascertainable, 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

beneficial legislation. Present legislation is certainly a piece of

beneficent legislation.33

15.4 Accordingly, we conclude that compensation will be

payable as applicable on the date of the accident with interest as

may be considered reasonable from time to time on the same

pattern as in accident claim cases. If the amount so calculated is

less than the amount prescribed as on the date of the award of the

33 Prabhakaran Vijaya Kumar (supra) Para 12

Tribunal, the claimant will be entitled to higher of the two amounts.

This order will not affect the awards which have already become

final and where limitation for challenging such awards has expired,

this order will not by itself be a ground for condonation of delay.

Seeming conflict in Rathi Menon (supra) and Kalandi Charan

Sahoo (supra) stands explained accordingly. The 4-Judge Bench

judgment in Pratap Narain Singh Deo (supra) holds the field on

the subject and squarely applies to the present situation.

Compensation as applicable on the date of the accident has to be

given with reasonable interest and to give effect to the mandate of

beneficial legislation, if compensation as provided on the date of

award of the Tribunal is higher than unrevised amount with

interest, the higher of the two amounts has to be given.

Re: (ii) Application of Principle of Strict Liabillity –

Concept of Self Inflicted Injury

16.1 From the judgments cited at the Bar we do not see

any conflict on the applicability of the principle of strict liability.

Sections 124 and Section 124A provide that compensation is

payable whether or not there has been wrongful act, neglect or

fault on the part of the railway administration in the case of an

accident or in the case of an ‘untoward incident’. Only exceptions

are those provided under proviso to Section 124A. In

Prabhakaran Vijaya Kumar (supra) it was held that Section

124A lays down strict liability or no fault liability in case of railway

accidents. Where principle of strict liability applies, proof of

negligence is not required. This principle has been reiterated in

Jameela (supra).

16.2 Coming to the proviso to Section 124A to the effect

that no compensation is payable if passenger dies or suffers injury

due to the situations mentioned therein, there is no difficulty as

regards suicide or attempted suicide in which case no

compensation may be payable. Conflict of opinions in High Courts

has arisen on understanding the expression ‘self inflicted injury’ in

the proviso. In some decisions it has been held that injury or death

because of negligence of the victim was at par with self inflicted

injury. We may refer to the decisions of High Courts of Kerala in

Joseph PT (supra), Bombay in Pushpa (supra) and Delhi in

Shayam Narayan (supra) on this point.

16.3. In Joseph PT (supra), the victim received injuries in the

course of entering a train which started moving. Question was

whether his claim that he had suffered injuries in an ‘untoward

incident’ as defined under Section 123(c) could be upheld or

whether he was covered by proviso to Section 124A clause (b).

The High Court held that while in the case of suicide or attempt to

commit suicide, intentional act is essential. Since the concept of

‘self inflicted injury’ is distinct from an attempted suicide, such

intention is not required and even without such intention if a

person acts negligently, injuries suffered in such an accident will

amount to ‘self inflicted injury’. Relevant observations are :

“Therefore, the two limbs of the Proviso should be

construed to have two different objectives to be

achieved. We can understand the meaning of the

term "self-inflicted injury" not only from the

sources provided by the dictionaries, but also from

the context in which it is used in the statute. The

term "self-inflicted injury" used in the statute

can be deduced as one which a person

suffers on account of one's own action, which

is something more than a rash or negligent

act But it shall not be an intentional act of

attempted suicide. While there may be cases

where there is intention to inflict oneself

with injury amounting to self-inflicted injury,

which falls short of an attempt to commit

suicide, there can also be cases where,

irrespective of intention, a person may act

with total recklessness, in that, he may throw

all norms of caution to the wind and regardless to

his age, circumstances, etc. act to his detriment.

Facts of this case show that the appellant

attempted to board a moving train from the off

side unmindful of his age and fully aware of the

positional disadvantageous and dangers of

boarding a train from a level lower than the

footboard of the train. It is common knowledge that

the footboard and handrails at the doors of the

compartment are designed to suit the convenience

of the passengers for boarding from and alighting

to the platform. And at the same time, when a

person is trying to board the train from the nonplatform side, he will be standing on the heap of

rubbles kept beneath the track and that too in a

lower level. Further more, he will have to stretch

himself to catch the handrails and struggle to climb

up through the footboard hanging beneath the

bogie. The probability of danger is increased in

arithmetic progression when the train is moving.

Visualising all these things in mind, it can only be

held that the act of the appellant was the height of

carelessness, imprudence and foolhardiness. It is

indisputable that the purpose of Section 124A of

the Act is to provide a speedy remedy to an injured

passenger or to the dependants of a deceased

passenger involved in an untoward incident.

Section 124A of the Act provides for compensation

to a passenger or his dependants who suffers

injury or death, as the case may be, in an untoward

incident even where the untoward incident is not

the consequence of any wrongful act, neglect or

default on the part of the Railway Administration.

To this extent, it can be said to be a no-fault

liability. Even though the provisions relating to

payment of compensation in the Act can be said to

be a piece of beneficial legislation, it cannot be

stretched too much to reward a person who acts

callously, unwisely or imprudently. There is no

provision of law brought to our notice permitting

the passengers to entrain from the non-platform

side of the railway track. However, the counsel for

the respondent did not show any provision of law

prohibiting the same. The question whether an act

by which a passenger sustains injury while

boarding a train through the off side, is a selfinflicted injury or not depends on the facts of each

case. Merely because a person suffered injury in

the process of getting into the train through the off

side, it may not be sufficient to term it as a selfinflicted injury, unless the facts and circumstances

show that his act was totally imprudent, irrational,

callous and unmindful of the consequences. All the

facts and circumstances established in this case

would show that the act of the appellant was with

full knowledge of the imminent possibility of

dangering his life or limb and therefore, it squarely

comes within the term "self-inflicted injury" defined

in Section 124A Proviso (b) of the Act.”

16.4 In Pushpa (supra) a hawker died in the course of

boarding a train. It was held that he was not entitled to

compensation as it was a case of ‘self inflicted injury’. The

relevant observations are :

“Such an attempt by a hawker has been viewed by

the trial Court as something amounting to criminal

negligence on his part and also an effort to inflict

injuries to himself. The trial Court reasoned that if

the deceased had to sell his goods by boarding a

train, he should have ensured to do so only when it

was quite safe for him to get on to the train or

otherwise he could have avoided catching the train

and waited for another train to come. It also hinted

that there was absolutely no compulsion or hurry

for the deceased in the present case to make an

attempt to somehow or the other board the train

while it was gathering speed.”

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. 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

34 2017 (13) SCALE 652

not fall under the proviso to Section 124A merely on the plea of

negligence of the victim as a contributing factor.

Re: (iii) Burden of Proof When Body Found on Railway

Premises – Definition of Passenger :

17.1 Conflict of decisions has been pointed out on the

subject. As noticed from the statutory provision, compensation is

payable for death or injury of a ‘passenger’. In Raj Kumari

(supra) referring to the scheme of Railways Act, 1890, it was

observed that since travelling without ticket was punishable, the

burden was on the railway administration to prove that passenger

was not a bonafide passenger. The Railway Administration has

special knowledge whether ticket was issued or not. 1989 Act also

has similar provisions being Sections 55 and 137. This view has

led to an inference that any person dead or injured found on the

railway premises has to be presumed to be a bona fide passenger

so as to maintain a claim for compensation. However, Delhi High

Court in Gurcharan Singh (supra) held that initial onus to prove

death or injury to a bona fide passenger is always on the claimant.

However, such onus can shift on Railways if an affidavit of relevant

facts is filed by the claimant. A negative onus cannot be placed on

the Railways. Onus to prove that the deceased or injured was a

bona fide passenger can be discharged even in absence of a ticket

if relevant facts are shown that ticket was purchased but it was

lost. The Delhi High Court observed as follows :

“3(ii) In my opinion, the contention of the learned

counsel for the appellants/claimants is totally

misconceived. The initial onus in my opinion always

lies with the appellants/claimants to show that

there is a death due to untoward incident of a bona

fide passenger. Of course, by filing of the affidavit

and depending on the facts of a particular case that

initial onus can be a light onus which can shift on

the Railways, however, it is not the law that even

the initial onus of proof which has to be discharged

is always on the railways and not on the claimants.

I cannot agree to this proposition of law that the

Railways have the onus to prove that a deceased

was not a bonafide passenger because no such

negative onus is placed upon the Railways either

under the Railways Act or the Railway Claims

Tribunal Act & Rules or as per any judgment of the

Supreme Court. No doubt, in the facts of the

particular case, onus can be easily discharged such

as in a case where deceased may have died at a

place where he could not have otherwise been

unless he was travelling in the train and in such

circumstances depending on the facts of a

particular case it may not be necessary to prove

the factum of the deceased having a ticket because

ticket as per the type of incident of death can easily

be lost in an accident. I at this stage take note of a

judgment of a leaned Single Judge of this Court in

the case reported as Pyar Singh Vs. Union of India

2007 (8) AD Del. 262 which holds that it is the

claimant upon whom the initial onus lies to prove

his case. I agree to this view and I am bound by this

judgment and not by the ratio of the case of

Leelamma (supra).”

17.2 In Jetty Naga Lakshmi Parvathi (supra) same view was

taken by a single Judge of Andhra Pradesh after referring to the

provisions of the Evidence Act as follows :

“22. So, from Section 101 of the Indian Evidence

Act, 1872, it is clear that the applicants, having

come to the court asserting some facts, must prove

that the death of the deceased had taken place in

an untoward incident and that the death occurred

while the deceased was travelling in a train

carrying passengers as a passenger with valid

ticket. Therefore, having asserted that the

deceased died in an untoward incident and he was

having a valid ticket at the time of his death, the

initial burden lies on the applicants to establish the

same. The initial burden of the applicants never

shifts unless the respondent admits the assertions

made by the applicants. Such evidence is lacking in

this case. Except the oral assertion of A.W.1, no

evidence is forthcoming on behalf of the applicants.

The court may presume that the evidence which

could be, and is not produced, would, if produced,

be unfavourable to the person who withholds it. The

best evidence rule, which governs the production of

evidence in courts, requires that the best evidence

of which the case in its nature is susceptible should

always be produced. Section 114(g) of the Indian

Evidence Act, 1872 enables the court to draw an

adverse presumption against a person who can

make available to the court, but obstructs the

availability of such an evidence. The Claims

Tribunal, upon considering the material on record,

rightly dismissed the claim of the applicants and

there are no grounds in this appeal to interfere with

the order of the Tribunal.”

17.3 In Kamrunnissa (supra), from the circumstances

appearing in that case it was held that there was no evidence that

the deceased had purchased the ticket. In the given fact situation

of that case, this Court inferred that it was not a case of ‘untoward

incident’ but a case of run over. It was observed :

“7. The aforestated report also reveals, that the

body of the deceased had been cut into two pieces,

and was lying next to the railway track. The report

further indicates, that the intestine of the deceased

had come out of the body. The above factual

position reveals, that the body was cut into two

pieces from the stomach. This can be inferred from

the facts expressed in the inquest report, that the

intestines of the deceased had come out of the

body. It is not possible for us to accept, that such an

accident could have taken place while boarding a

train.

8. In addition to the factual position emerging out of

a perusal of paragraphs 7 & 8 extracted

hereinabove, the report also reveals, that besides a

pocket diary having been found from the person of

the deceased a few telephone numbers were also

found, but importantly, the deceased was not in

possession of any other article. This further clears

the position adopted by the railway authorities,

namely, that the deceased Gafoor Sab, was not in

possession of a ticket, for boarding the train at the

Devangere railway station.”

17.4 We thus hold that mere presence of a body on the Railway

premises will not be conclusive to hold that injured or deceased

was a bona fide passenger for which claim for compensation could

be maintained. However, mere absence of ticket with such injured

or deceased will not negative the claim that he was a bona fide

passenger. Initial burden will be on the claimant which can be

discharged by filing an affidavit of the relevant facts and burden will

then shift on the Railways and the issue can be decided on the facts

shown or the attending circumstances. This will have to be dealt

with from case to case on the basis of facts found. The legal

position in this regard will stand explained accordingl

Re: (iv) Rate of Interest

18. As already observed, though this Court in Thazhathe Purayil

Sarabi (supra) held that rate of interest has to be at the rate of 6%

from the date of application till the date of the award and 9%

thereafter and 9% rate of interest was awarded from the date of

application in Mohamadi (supra), rate of interest has to be

reasonable rate at par with accident claim cases. We are of the

view that in absence of any specific statutory provision, interest can

be awarded from the date of accident itself when the liability of the

Railways arises upto the date of payment, without any difference in

the stages. Legal position in this regard is at par with the cases of

accident claims under the Motor Vehicles Act, 1988. Conflicting

views stand resolved in this manner

» 2018-GCtR-2426-SC.pdf

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