The Kerala High Court on 18 June 2013 in Achuthan Nair Vs. Union of India held that “passenger who protected unauthorised entry of local passengers into reserved seats cannot be visualise as a criminal act and entitled to compensation under untoward incidents rules.”
A bench comprising of Justice Thottathil B.Radhakrishnan and Justice K. Vinod Chandran observed that “violent attack by any person in or on any train carrying passengers is an untoward incident in terms of clause (1)(iii) of Section 123(c) of the Act.”
# Railway Accidents and Untoward Incidents (Compensation) Rules, 1990
Having given Court’s anxious consideration to the situation of the family of the deceased Aneesh Kumar, aged 26 years at the time of his death, and the fact that he was a serving Jawan, who unfortunately died at the hands of unruly mob which attacked the railways, the Court felt that the railway establishment concerned should anxiously consider giving some further support to the bereaved family.
The Court noted from the application that Aneesh Kumar’s father was 72 years old and his mother 55 years old when they filed the application along with their daughter, 23 years of age. She is shown as unmarried in the Original Application. On Court’s query it is said, she still remains unmarried.
“At least as a matter of benevolence, the railway administration could consider giving a facility of employment to Anjana, Aneesh Kumar’s sister. If such a decision is taken in favour of the family within a period of three months from now, the order for costs imposed as per this judgment will stand recalled and the rate of interest payable on the compensation amount would stand slashed to 6%. At any rate, the entire amount due in terms of this judgment and the decision relating to employment shall be made available to the claimants through the Tribunal without fail on or before the Gandhi Jayanti, 2012. If the 3rd appellant desires appointment as aforesaid, she shall make an application to the competent authority within a period of three weeks from now,” the judgment said.
Whether the Railways would stand exonerated from paying compensation on any ground referable to the proviso to Section 124A of the Act.
That section provides, inter alia, that when an untoward incident occurs in the course of working a railway, 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 in terms of the prescriptions made under the Act.
Clause (c) of the proviso thereto is that no compensation shall be payable if the passenger dies or suffers injury due to his own criminal act. That proviso, essentially in the nature of an exemption from liability to compensate, would apply only when the death or sufferance of injury is the result of the criminal act of the person who dies or suffers the injury.
The facts of the case clearly show that the transaction in which the mob caught hold of Aneesh Kumar and injured him seriously, leading ultimately to his death, could have been triggered or motivated by the information, given by the local passengers who had unauthorisedly intruded into S-12 bogie, about Aneesh Kumar allegedly using his official weapon to meet the offensive situation held out to him by the local passengers. The two transactions are entirely different.
The events in S-12 bogie could have generated the motive and intention for the congregation and assembly of local people near the North Cabin of Khurda Road Railway Station, where the train was stopped with the intention to attack it. That intention fructified in the attack. Such assembly is one liable to be treated as an unlawful assembly.
That set of incidents relating to S-3 bogie can never be characterised as involving any act whatsoever, of Aneesh Kumar, who was given protective cover of the Railway Protection Force. Even if the transactions in S-12 bogie are also to be taken into consideration, the Court visualised the situation where one Jawan had tried to put his foot down on the face of unlawful, irrational, unlawful assembly and unruly mob behaviour in violation of the laws, including the provisions of the Railways Act and the Indian Penal Code.
On that premise, the attribute made to Aneesh Kumar, of having used the weapon in his lawful possession, as only an exercise of his right of self defence in the course of the transactions that happened in S-12 bogie. Either way, the Court found no ground to hold that Aneesh Kumar suffered injuries due to his own criminal act and later succumbed.
The death of Aneesh Kumar is the end result of the injuries suffered by him. His death resulted from the untoward incident, which was its proximate cause. Railways are, therefore, liable to pay compensation for death. His dependants/legal representatives are entitled to compensation in terms of the Act and the Rules framed thereunder.
The amount payable as compensation for death is Rs.4,00,000/- (Rupees four lakhs only) in terms of Rule 3 of the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 read with Part I of the Schedule to those Rules. On the facts and circumstances, the Court viewed that the claimants are entitled to interest on such amount at 12% per annum from the date of registration of the application.
In the result, the impugned order is vacated and an award is passed directing the railway administration concerned to pay the claimants an amount of Rs.4,00,000/- with 12% interest from the date of registration of the application.
# Facts of the Case
This appeal by the claimants is against an order dismissing an application for compensation filed under Section 125 of the Railways Act, 1989.
The application was for compensation for loss occasioned by death on account of untoward incident. Deceased was a passenger of Howrah-Chennai “Coromandal Express”. Local passengers who had not reserved seats intruded into that compartment, leading to an altercation between them and those who had reserved seats and were occupying them.
In the course of that, Aneesh Kumar, a member of the Gourkha Regiment, on being provoked, pulled out his Bhujali (Khurpi). Some local passengers who, going by law, were ineligible to travel in that compartment, sustained injuries, statedly, from Aneesh Kumar’s Bhujali. The mob turned on Aneesh Kumar. The unreserved local passengers informed about this to other local people over mobile phones.
More than 500 local people congregated and attacked the train after stopping it by pulling the chain, near North Cabin of Khurda Road Railway Station. The mob disconnected the hose-pipe of the train; pelted stones and entered the bogies.
The official report itself is that Aneesh Kumar tried to escape, but the mob caught up with him and had beaten him to a senseless condition. Later, he succumbed. A case was registered in relation to that incident and certain persons were arrested.
The report of the Railway Police, including the First Information Report registered on the basis of the statement of the police constable who escorted the running train contains the candid admission of the Railway Police and the Railways that there was shortage of police personnel and that the available policemen could not control the mob or protect Aneesh Kumar.
The Tribunal dismissed the application holding that the incident is not an ‘untoward incident’ as defined in Section 123(c) of the Act and that even if it were one so, Aneesh Kumar suffered injuries and died only due to his own criminal act and, therefore, the railway administration is not liable to pay any compensation in view of clause (c) of the proviso to Section 124A of the Act.
It was argued on behalf of the Railways that the sequence of events as disclosed by the materials on record shows that the deceased Aneesh Kumar was the one who ignited the chain of events and, hence, he has to be treated as the one who had caused the incident and that, what all he did, amounted to criminal acts and, therefore, even if the incident is an untoward incident, no compensation is payable by the railway administration, since the deceased suffered on account of his own criminal acts.
The Court heard the learned counsel for the appellants Sunny Zacharia and the respective learned standing counsel for the East Coast Railway and the Southern Railway M.C. Cherian , C.S. Dias.