Raju K. Thomas and Daisy v Union of India

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 17TH DAY OF DECEMBER 2015/26TH AGRAHAYANA, 1937 MFA.No. 46 of 2015 () ---------------------- AGAINST THE ORDER/JUDGMENT IN OA(llu)/ERS/2013/0086 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM BENCH DATED 30.10.2014 APPELLANTS : ------------ 1. RAJU.K.THOMAS 'PARAVILA VEEDU", ANDOOR P.O., VALAKOM- 691 532, KOTTARAKKARA, KOLLAM DISTRICT. 2. DAISY, W/O RAJU.K.THOMAS, 'PARAVILA VEEDU", ANDOOR .P.O., VALAKOM- 691 532, KOTTARAKKARA, KOLLAM DISTRICT. BY ADV. SRI.S.SAJITH RESPONDENT : - ------------- UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI. BY ADV. SRI.JOHN MATHEW,SC, RAILWAYS BY SRI.C.S.DIAS,SC, RAILWAYS THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17-12-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **“C.R.”** ## **K. Harilal & P. Somarajan, JJ.** **---------------------------------------------------M.F.A. (RCT) No.46 of 2015** **---------------------------------------------------Dated this the 14[th] day of June, 2017** ## **JUDGMENT** ## **Somarajan, J.** Aggrieved by the dismissal of an application under Section 124A of the Railways Act, 1989, claiming compensation for the accidental death of the son of the applicants, the applicants came up with this Memorandum of First Appeal. Apart from the question of appreciation of the facts and evidence involved in the case, the following legal questions also came up for consideration:- - (1) Whether it is permissible to interpret a beneficial provision harmoniously so as to dis-entitle the benefit thereunder? - (2) What would be the principle of interpretation that can be applied in a beneficial legislation once it was found to be having two interpretations? - (3) What would be the meaning and effect of the expression “self inflicted injury” envisaged under the exceptions to the proviso to Section 124A of the Railways Act? and ## **M.F.A. (RCT) No.46 of 2015** :: 2 :: - (4) Whether the incident involved would come under the exception to the proviso to Section 124A of the Railways Act? 2. The case advanced in short is that on 23.1.2012, while attempting to enter into a moving train, the son of the appellants fell down from the train, resulting in serious injuries. The injured, though removed to the nearby hospital, succumbed to the injuries on the same day, resulting in an application under Section 124A of the Railways Act (for short 'the Act'). On consideration of the evidence and after hearing both the parties, the Railway Claims Tribunal, Ernakulam (hereinafter referred to as 'the Tribunal') dismissed the application, mainly on the reason that the injuries suffered by the victim are self inflicted injuries and, as such, the legal heirs/dependents of the victim are not entitled to grant of compensation, which is under challenge in this appeal. 3. The Tribunal mainly relied on the oral evidence tendered by RW1, Station Superintendent of Tiruvalla Railway Station, wherein the accident occurred, and found that the alleged incident and cause ## **M.F.A. (RCT) No.46 of 2015** :: 3 :: of injury would come under the purview of the expression “self inflicted injury” as incorporated in one of the exceptions, clause (b) of the proviso to Section 124A of the Railways Act and took reliance from a Division Bench decision of this Court in **Joseph P.T. @ Thomas Jacob** v. **Union of India (2013 (4) KHC 297),** wherein it was found, in an identical case, that injuries sustained by a passenger while boarding the train through off side unmindful of consequences, totally imprudent, irrational with full knowledge of imminent possibility of dangering his life or limb amounts to “self inflicted injury” and not an “untoward incident”. 4. No independent witness was examined and no other sufficient evidence was adduced to show that the accident was happened in the manner as alleged by the Railway, except the interested testimony of one of the staff of the Railways as RW1. During the course of arguments, it was submitted by the learned counsel for the respondent that normally the Superintendent of the Station has to do his work in the office and there is a chamber for him in the office as that of the Superintendent of Railways. It is too hard to digest that a person who was sitting inside the chamber in ## **M.F.A. (RCT) No.46 of 2015** :: 4 :: the railway station had seen the alleged incident and had given instruction to the victim, while attempting to enter into the train. As discussed earlier, no independent witness was examined. The interested testimony of the Superintendent of the Railway Station was accepted by the Tribunal without assessing whether it is possible for him to see the alleged incident and to instruct or give warning to the victim before the happening of the alleged incident. The person who is in charge of train or its guard was not examined and hence the factual finding of the Tribunal cannot be accepted. 5. Needless to say that Section 124A is based on strict liability (no fault liability) and the element of wrongful act, neglect or default shall not be taken into account while granting the compensation as per the Schedule annexed to Section 124A, limiting the rate of compensation, with the exceptions in clauses (a) to (e) to the proviso to that Section, which are extracted below for reference: “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; ## **M.F.A. (RCT) No.46 of 2015** :: 5 :: - (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. - _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.” ## 6. In **Joseph P.T. @ Thomas Jacob** v. **Union of India (2013** **(4) KHC 297)** (the decision relied on by the Tribunal) a Division Bench of this Court considered what actually amounts to “selfinflicted injury”. It was observed in the said decision that a harmonious interpretation has to be applied while interpreting Section 124A of the Act. 7. The principle of harmonious interpretation can be applied only when there is inconsistency or repugnance either within a ## **M.F.A. (RCT) No.46 of 2015** :: 6 :: section or between sections and other parts of the statute. Harmonious construction is intended to give full effect of the provisions and not to reduce the impact of any one of the provision or to bring that provision as useless lumber. Harmonious construction really avoids inconsistency and repugnance. In other words, inconsistency or repugnance either within a Section or between Sections and other parts of the statute is _sine qua non_ for the application of harmonious interpretation. ## 8. In **Madanlal Fakirchand Dudhediya** v. **Shree Changdeo** **Sugar Mills Ltd. and others** (AIR 1962 SC 1543), it was held as follows: “The words used in a section must be given their plain grammatical meaning. Where the Court is dealing with two sub-sections of a section (for example, S.76, Companies Act, 1956) it is necessary that the two subsections must be construed as a whole “each portion throwing light, if need be, on the rest:. The two subsections must be read as parts of an integral whole and as being inter-dependent; an attempt should be made in construing them to reconcile them if it is reasonably possible to do so, and to avoid repugnancy. If ## **M.F.A. (RCT) No.46 of 2015** :: 7 :: repugnancy cannot possibly be avoided, then a question may arise as to which of the two should prevail. But that question can arise only if repugnancy cannot be avoided. It is not legitimate for the Courts to re-write the sub-sections, particularly when on the alternative construction it is found that there is no repugnance between the two sub-sections. That clearly is the function of the Legislature which enact slaws and not of the Court which interprets them.” (emphasis supplied) ## 9. It was again reiterated in **Sri Venkataramana Devaru and** **others** v. **State of Mysore and others (AIR 1958 SC 255)** in the following lines: “The rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect could be given to both. This is what is known as the rule of harmonious construction.” 10. Earlier in the year 1961, a Three Judges' Bench of the Apex Court in **Alembic Chemical Works Co. Ltd.** V. **The Workmen** ## **M.F.A. (RCT) No.46 of 2015** :: 8 :: **(AIR 1961 SC 647)** , had settled the rule of interpretation regarding beneficial legislation and applied beneficent rule of construction. It was held in that decision thus: “In construing the provisions of a welfare legislation courts should adopt a beneficent rule of construction; if a section is capable of two constructions that construction should be preferred which furthers the policy of the Act and is more beneficial to the employees in whose interest the Act has been passed.” (emphasis supplied) 11. In **Transport Corporation of India** v. **Employees' State Insurance Corpn. and another ((2000) 1 SCC 332)** , the Apex Court has applied the principle of beneficial interpretation in construing a beneficial piece of legislation and held that: “The Employees' State Insurance Act, 1948 is a beneficial piece of legislation intended to provide benefits to employees in case of sickness, maternity, employment injury and for certain other matters in relation thereto. It is enacted with a view to ensuring social welfare and for providing safe insurance cover to employees who were likely to suffer from various physical illnesses during the course of their employment. ## **M.F.A. (RCT) No.46 of 2015** :: 9 :: Such a beneficial piece of legislation has to be construed in its correct perspective so as to fructify the legislative intention underlying its enactment. When two views are possible on its applicability to a given set of employees, that view which furthers the legislative intention should be preferred to the one which would frustrate it.” (emphasis supplied) 12. In **B.D.Shetty** v. **Ceat Ltd. ((2002) 1 SCC 193)** , the very same principle was applied in interpreting Section 10A(1)(b) of the Industrial Employment (Standing Orders) Act, 1946 and held that: “Moreover, the Act is a beneficial piece of legislation and Section 10-A(1)(b) thereof is enacted with a view to ensure social welfare and security. Hence, such a beneficial piece of legislation has to be understood and construed in its proper and correct perspective so as to advance the legislative intention underlying its enactment rather than abolish it. Assuming two views are possible, the one, which is in tune with the legislative intention and furthers the same, should be preferred to the one which would frustrate it.” (emphasis supplied) ## 13. In **Kunal Singh** v. **Union of India (2003 (3) KLT 61 (SC)** **= (2003) 4 SCC 524)** , it was held by the Apex Court that: ## **M.F.A. (RCT) No.46 of 2015** :: 10 :: “In construing a provision of a social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act.” (emphasis supplied) 14. The Apex Court had occasion to consider the application of Sections 123(c) and 124A of the Act in relation to the expression “accident falling of a passenger from a train carrying passengers”, in **Union of India** v. **Prabhakaran Vijaya Kumar (2008 (2) KLT 700 (SC))** and it was held that if the words used in a beneficial or welfare statute are capable of two constructions, one which is more in consonance with the object of Act and for the benefit of the person for whom the Act was made should be preferred. (emphasis supplied) 15. The legal position settled throws light as to application of harmonious interpretation when there exists repugnancy between two provisions or a provision and the rest of the Act. If it is not ## **M.F.A. (RCT) No.46 of 2015** :: 11 :: possible to give effect to both the provisions by removing the repugnancy or inconsistency, then which would prevail should be assessed by exhausting other principles of interpretation including the principle based on legislative intention, object and purpose of the provision/the Act. In the case of beneficial legislation, the interpretation which favours or promotes the benefit shall be adopted. The application of plain and literal interpretation would be available only when the language employed is clean and unambiguous and found to be not capable of giving any inconsistency or repugnancy. In short, the existence of repugnancy and inconsistency on a plain reading on a literal interpretation would bring the matter within the sweep of other interpretation including harmonious interpretation as well as beneficial interpretation based on legislative intention and the purpose and object of the provision/the Act. 16. Going by Section 124A of the Railways Act and the proviso attached carving out exemptions, we do not find any application of harmonious interpretation as there is no inconsistency or repugnance either within the Section or between Sections and ## **M.F.A. (RCT) No.46 of 2015** :: 12 :: other parts of the statute. The language employed under Section 124A of the Railways Act is plain and unambiguous. The question of the meaning of and what would be the effect of the expression “self inflicted injury” in clause (b) of the proviso to Section 124A of the Railways Act cannot be separated from the expression “suicide” or “attempted suicide” in clause (a) of the proviso to Section 124A. The expression “suicide”, “attempt to commit suicide” and “self inflicted injury” are intrinsically webbed in its origin and cause and stands on same pedestal and it cannot be segregated or isolated each other. Both are standing on the same footing as the latter two stands for injury suffered and the former one stands for death on account of the injury suffered, either simultaneously or on a later point of time. Needless to say that there cannot be a death by suicide without having inflicted injuries which would sufficient in its ordinary course to cause death. Once the victim had escaped from the last verdict in his pursuit, it would bring the injuries caused under the sweep of the expression “self inflicted injury”. In other words, origin of the injury sustained and its cause cannot be segregated or isolated based on its resultant effect; death or injury sustained. Both are standing on the same footing without having any inconsistency or repugnance. ## **M.F.A. (RCT) No.46 of 2015** :: 13 :: As such, while interpreting the expression “self inflicted injury” no harmonious construction can be applied. As discussed in the earlier paragraphs, being a beneficial provision and when there is scope for two interpretations to the expression “self inflicted injury”, one is based on atmost carelessness, imprudence, high negligence, recklessness or rashness and the other is standing on the factum of mens rea (guilty consciousness/malicious intent) to have an attempt to do away his life or to inflict injury by himself, the former one which promotes the beneficial provision has to be accepted. What matters is the absence of mens-rea. Imprudence, recklessness, negligence, rashness on any higher degree cannot be substituted in the place of mens-rea, which alone would bring the matter within the exception clauses (a) and (b) to the proviso to Section 124A of the Act. 17. Interpretation given to the expression “criminal act” envisaged under clause (c) of the proviso to Section 124A of the Act by the Supreme Court in **Jameela** v. **Union of India (2010 (3) KLT 882 (SC))** , though not under clauses (a) and (b) to the proviso to that Section, assumes importance at this juncture, wherein the same principle applied and held thus:- ## **M.F.A. (RCT) No.46 of 2015** :: 14 :: “9. The manner in which the accident is sought to be reconstructed by the Railway, the deceased was standing at the open door of the train compartment from where he fell down, is called by the railway itself as negligence. Now negligence of this kind which is not very uncommon on Indian trains is not the same thing as a criminal act mentioned in Cl.(c) to the proviso to S.124A. A criminal act envisaged under Cl.(c) must have an element of malicious intent or _mens rea_ . Standing at the open doors of the compartment of a running train may be a negligent act, even a rash act but, without anything else, it is certainly not a criminal act. Thus, the case of the railway must fail even after assuming everything in its favour.” 18. The legal position settled in (1) **Union of India** v. **Prabhakaran Vijaya Kumar (2008 (2) KLT 700 (SC)), (2) Alembic Chemical Works Co. Ltd.** V. **The Workmen (AIR 1961 SC 647)** , (3) **Transport Corporation of India** v. **Employees' State Insurance Corpn. and another ((2000) 1 SCC 332)** , (4) **B.D.Shetty** v. **Ceat Ltd. ((2002) 1 SCC 193)** , **and (5) Kunal Singh** v. **Union of India (2003 (3) KLT 61 (SC) = (2003) 4 SCC 524)** has not been applied by the Division Bench of this Court in **Joseph P.T. @ Thomas Jacob** v. ## **M.F.A. (RCT) No.46 of 2015** :: 15 :: ## **Union of India (( 2013 4) KHC 297(DB))** . 19. Even the Railway did not have any case that the victim entered into the train through off side with the malicious intent to do away his life or to cause self inflicted injury, but advanced a case resting on high recklessness, imprudence and negligence on the part of the victim, while boarding the train. It cannot be substituted in the place of _mens-rea_ to cause “self inflicted injury” or to commit suicide. 20. Further, no satisfactory evidence was adduced to show that the alleged incident was happened while the victim was attempting to enter into the train through off side. Hence, we are of the view that the order passed by the Tribunal does not reflect proper application of the facts involved in the case and the law in force. Hence, the impugned order is liable to be set aside and we do so. 21. The accident was happened on 23.1.2012. Subsequently, in the year 2016, the schedule was amended incorporating an ## **M.F.A. (RCT) No.46 of 2015** :: 16 :: amount of Rupees eight lakhs instead of Rupees four lakhs. Going by the proposition laid down in **Rathi Menon** v. **Union of India (2001 (2) KLT 12 (SC)),** it is permissible to grant compensation based on the subsequent amendment, being an amendment in a beneficial legislation. Hence, an amount of Rupees eight lakhs is awarded to the appellants/applicants with interest at the rate of 9% per annum to a sum of Rupees four lakhs from the date of petition till 22.12.2016 and thereafter, at the rate of 6% per annum to the principal sum of Rupees eight lakhs till realization from the respondent. The Miscellaneous First Appeal is allowed accordingly. No order as to costs. ## **K. Harilal Judge** **P. Somarajan Judge** ahz/