Union of India & Ors Vs. Sunil
Kumar Ghosh [1984] INSC 147 (21 August 1984)
THAKKAR, M.P. (J) 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, occurring
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 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]
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 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 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 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 at least
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 everyday 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 here to before. 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.
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