Union of India and Ors v. S. K. Ghosh

A B c D E II G ff ###### • ##### .. _555_ UNION OF INDIA AND ORS. _v._ SUNJL KUMAR GHOSH. _August 21,_ _1984_ [A.P. SEN AND M.P. THAKKAR, JJ.) _Indian_ _Railways Act 1890, Section 82-4.-Scope_ _of-Bogie of_ pa~senger _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 ._ ~accldent'-What _is-Explained._ _Wor:ds_ _and Phrases_ : _'accident'-Meaning of-Section 82A, Indian Railways_ _Act 1890._ The resPondent was travel1iog by train as a bona fide pasSeoger, Wb~le the" bogic in wbic~ 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 lhe platform and his right band was crushed by that· part of the iraiO wliich was being shunted. . The District Judge did not accept the version of the respondent that the bogie in which be was travellin~ received a sudden jerk and that he fell down on that account, and dismissed lhe applicatiC'D 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 bis rail journey, occuring 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 trave11ing. 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 mish:ip or injury sustained by a passenger on account of falling down whilst getting on or off a running or stadonary train or sustained when he slips in a compartment Or when something falls on him wbilil travellin~. J\ll sq9h 111isbaps; when QOI Qoqn~te<l with the acci<lent A B c D E F G ff SUPREME COURT REPORTS [1985] I S.C.R • 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 allracted. 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·S63A) In the instant case, liability under Section 82A will not be attracted, as it cannot be said that there has been an accident _lo_ _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 f<Jult'.liability. And presumably in order to be rfair' 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, bas provided for compensltion by a summary proceeding and has m.ade the liability fault-free. [561B-D] 3. That the _'accident'_ envisioned by the first part of Section 87A( 1) i! an accident _'to'_ the 'train' or _'a_ part of lhe train' is self-evident. The Section 'speaks of ·an accident by _reason_ _(Jf_ either ( l) collision or {2) derailment or (3) mher 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 :he train, say, by reason or his own act default or misfortune, which bas no nexus with the _'accident'_ _to the_ _tral11.'_ What the section does is t'l turn a liability which was _contingent_ _on_ _fault'_ into an 'absolute' liability. What howe~cr, _it does_ _not_ _do,'_ is to provide a free insuran~e cover to the person and property of a ~a·.ssenger sO that compensatiori 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. [56 JE-G] _5._ An accident is an occurrence or an event which is unforeseen and startles one when it takes ptace 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 tha happening of which jg ordinariiy 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 1,1,ifhout such a jerk or an impact at least when it i~ ~ttached or anne~ed .to a tr~in b?' a -sh~ntin~ en~i~e. if~ P-"'isen~er ###### • •. UNION _v._ s. K. GHOSH _(Thakkar,_ _J.)_ _551_ tumbles inside the compartment or tumbles out of the compartment when A **he is getting inside the compartmet or stepping out** **of the compartmet** **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 **B** From the Judgment and Order dated the 10th March, 1983 of the Madhya Pradesh High Court in Misc. (First) Appeal No. 88 of 1979 c **D** ##### • ###### • **f** " ###### • _M._ S. _Gujral_ and _R._ _N._ _Poddar_ for the Petitioners. The Judgment of the Court was deli,ered 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. 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 passengor, 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. l 36 of the Constitution of India having regard to the size of the award (both sides wonld 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 involv\ld in th\' matter was erroneous. We now The High Court, in our opinion, was in error in not up- E holding 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. F **G** **ff** _558_ . SUPREME COURT REPORTS [1985] I S.C.R. A 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· "'-'1. B c D E F G ff The respondent was trave]ling 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 e~actly 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 trave}ling 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: "~2A. -Liability of Railway Administration in respect of accidents to trains carrying passengers (J) _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 ad lI!iQ istratiol\ #, ##### • t ## .. •• _t_ ###, ###### • "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 8 2A must mean to include within its ambit all incidents resulting in the death of or bodily injury to any pas· senger during his rail journey, occurring in the course of working a railway, if it involves a passenger train or a part thereof. Any incident treate.d as railway ai;cident involving a passanger 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.''** UNION _v._ s. K. GHOSH _(Thakkar,_ J.) 559 such as would entitle a person who has been A 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 subsection ( 2) and to that extent only for loss ·s 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._ C ( 2 _!_ This liability of a railway administration under this Section shalt in no case exceed fifty thousand rupees in respect of any one person." (Emphasis added)· D In interpreting Section 82A the High Court speaks thus: E F G Jn our opinion the High Court has shut its eyes to the 'H **A** 560 SUPREME COURT REPORTS [l 985] 1 S.C.R. significance of the essential precondition engrafted in Section 82A in regard to the _'accident, to the tram'._ Why we say so will become evident presently. A 'body- scan' of the aforesaid provision (Section 82A) **B** reveals that: ' ·" ###### • ### • #### .. **c** **D** **E** **F** **G** **H** (1) The machinery of the Section is set in motion only provided there is an _'accident'._ I ( 2) The accident must be _'to'_ the 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, com,iensation _to_ _the extent provided_ in the Section will become payable. (5) such compensation wlll be payable regardless of whe· ther or not the accident to the train carrying passengers is due to negligence or fault on the part of the railwav 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 theref0 re no room for any ambi$Uity on that scor~. ' ,, ,, UNiON _v._ _s._ _K._ GliOSH _(Tha/ckar,_ J.) 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 eharges 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 te 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 f;r death of the passenger 'whilst' travelling or injury sustained by a pa15enger '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_ _ttie_ _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 **J{** #### .. A I ,B " c **D** lj .E F .o A B _a_ E F G H 562 SUPREME COU!tT REPORTS [1985] I s.c.R. 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 tbe 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 anotheP cannot be termed as an accident. No shunting can take place without such a jerk or an impact at!east 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 be 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 every day 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 ' ' _l_ ' ' ##### • UNION •.• s. It. GHOSH _(Thakkar,_ J.) 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 heretobefore. 1hat 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. ' A B c