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Saturday, September 1, 2018

foot-boarding passenger ~ liability of Railways

The gory accident involving death of passengers is now probably forgotten in a few days – that  sad incident, occurred at St Thomas Mount police station -  as the train was rolling on to platform 4, normally reserved for express trains, several commuters hanging on to the footboard in the compartment next to the engine smashed into the concrete fencing wall built on platform 3 and fell to the ground. Four of them were crushed to death under the train that was still moving fairly fast. Railway authorities said shoulder bags of several commuters travelling footboard hit the cement fence, and 10 passengers fell to the ground.A snag in the overhead electrical line had forced them to run slow local trains on the fast lines meant for express services, said southern railway officials.

With effect from 1.8.1994 under Section 124-A of the Railways Act, 1989 the railway administration has  become liable to pay compensation for loss of life or injury to bonafide rail passengers, who become victims of untoward incidents such as terrorist acts, violent attack, robbery, dacoity, rioting, shoot-out or arson by any persons in or on any train carrying passengers, waiting hall, cloak room, reservation or booking office, platform, any place within the precincts of a railway station or the accidental falling of any passenger from a train carrying passengers.

Section 124-A of the Railways Act, 1989 reads as under:-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.

Payment of compensation is governed by the Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 1997. Under these Rules, the amount of compensation payable in case of death is Rs.4 lakhs. For injuries the amount varies from Rs.32,000/- to Rs.4,00,000/- depending on the nature of injury sustained. Ex-gratia relief is given by the railway administration soon after an accident, at the rate of Rs.15,000/- to the next of the kin of the dead, Rs.5,000/- in the case of grievous injury and Rs.500/- in the case of simple injury. The ex-gratia relief is intended to meet the immediate expenses and is not taken into account at the time of final settlement of compensation claims. The coverage for Hospitalization Expenses for Injury is over and above the death/permanent total disability/partial disability – then there is the Travel Insurance Scheme kept uniform for all classes.  You would have noticed this provision while booking a travel ticket in IRCTC for any class of travel.

Train Accident is as defined under section 123 read with Sections 124 and 124A of the Railways Act, 1989 subject to the qualification that the coverage will be valid from the actual departure of train from the originating station to actual arrival of train at the destination station including’ process of entraining ‘ and process of detraining ‘ the train. One of the Q in the media was whether Railways would pay compensation to those who lost their lives in the accident – would this be construed as – self-inflicted, negligence, carelessness or even a criminal act, which Railways forbade. 

Travel on the footboard and a fall from the running train resulting in serious permanent disability are technically no longer any hurdle for seeking compensation.The mere fact of a fall from the moving train and the resultant injuries/disability sustained is enough, the Tribunal comprising vice-chairman (judicial) Mukesh Kumar Gupta and member (technical) S Mohan held earlier and  directed Southern Railway to cough-up the enhanced compensation of `8 lakh, with six per cent interest from the date of filing the claim petition.  In an earlier accident a person had   purchased a ticket for travel from Paramakudi to Chennai on April 27, 2014. As the unreserved compartment was over-crowded, he had to travel on the footboard.He fell down when the train was nearing Manamadurai junction and sustained serious injuries. His left leg below the knee and right foot were finally amputated. The victim,  a daily wage earner, moved the Tribunal claiming `4 lakh as compensation. Meanwhile, a GO dated December 22, 2016, which amended the Railway Accidents and Untoward Incidents (Compensation) rules, 1990, raised the compensation amount to `8 lakh with effect from January 1, 2017.

Railways submitted that since the claimant  had travelled on the footboard, an offence punishable under Section 156 of the Railways Act, the Railways could not be held responsible for his fall from the running train as the same was on account of his complete negligence. Moreover, he was a ticket-less traveller as he could not produce a valid one.  The counsel for the victim was to submit that  his client had lost his bag containing purse and ticket during his transit from accident site to the hospital. Passing orders, the Tribunal pointed out that the injuries suffered by the applicant victim, as reflected in various medical documents, has not been questioned in any manner. Similarly, not much has been stated on the journey ticket and thus, the basic issues that the applicant was a bona fide passenger, sustained injuries on April 27, 2014 due to the fall from the running train, remain uncontested.As far as the plea regarding ‘negligence’ on the part of the victim, the tribunal said it has no relevance. Law, as laid down by the Supreme Court, is that liability of Railway is strict and even if it were to be assumed that a passenger fell down from the train due to his own negligence, it would not have any effect on compensation payable under Section 124-A of the Railways Act, the tribunal added and directed payment of enhanced compensation of `8 lakh, as the injury and the disability were very serious falling within the ambit of Part II of Schedule appended to the Railway Accidents Rules.

Then there is another judgement pronounced by the High Court of Delhi in Sept 2017, wherein the claimants challenged an  order dated 31st Aug 2012 whereby their application for compensation was dismissed by the Railway Claims Tribunal. A person by name  Kamal Singh fell down between platform No.3 and 5 of Old Delhi Railway Station in Jan 2011. According to the appellant, they were  travelling from Ghaziabad to Delhi – nearing Old Railway station, the deceased fell down due to huge rush and jerk which resulted in fatal injuries. In this Court observed that the legal position with respect to the untoward incident inside the railway station is well settled. Section 124-A of the Railways Act is based on the principle of no fault liability and the compensation cannot be denied to the appellant on the ground that the deceased was negligent and it is wholly irrelevant as to who was at fault. Section 123(c) of the Railways Act defines „untoward incident‟ to include the accidental falling of any passenger from a train carrying passengers. The word „passenger‟ has been defined under Section 2 (29) of the Railways Act as a person travelling with a valid pass or ticket.  The court in an earlier instance stated that  it will not legally make any difference whether the deceased was actually inside the train when she fell down or whether she was only trying to get into the train when she fell down. In our opinion in either case it amounts to an "accidental falling of a passenger from a train carrying passengers". Coming back to the case in hand, it is not the case of the Railways that the death 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.

So in various cases, it has been held that an accidental fall even when the passenger was foot-boarding would still make the Railways liable for compensation – but what humans need to understand is whether there is compensation or none – it makes sense not to expose self to any form of danger.

With regards – S. Sampathkumar
15th Aug 2018.

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