JUDGMENT
1. This appeal has been filed by the appellant against the judgment of the Railway Claims Tribunal dismissing the claim application of the appellant.
2. The appellant who happens to be the mother of the deceased Bideshi Mahato filed an application for grant of compensation for
the death of her son. The claim application has been dismissed primarily on the ground that the deceased died in a bus accident and not railway accident. Various provisions of the Railways Act 1989 hereinafter referred to as (The Act) have been referred to. It appears that the Tribunal thought that if there is a collision between the two trains or there is a derailment, a passenger was entitled to a compensation in that situation only and not under any other circumstances. It has also been found that the deceased was not a bona fide passenger inasmuch as no ticket number was mentioned in the application and the same was not produced in evidence.
3. Some of the fads have not been disputed before us during the course of the arguments. It was not disputed that on account of flood, the passengers in Kumrup Express could not be carried beyond Gouripur in the district of Dhubri and the Railway Authorities had to carry the passen-gers by certain buses including ASTC bus (As-01-0087) on 18-8-93. The aforesaid bus met with an accident with another bus resulting in the death of two persons including the son of the appellant. It has further remained undisputed before us that the aforesaid bus was hired by the Railway Authorities for carrying the passengers.
4. In view of the aforementioned admit ted facts the question arises whether the Tribunal is justified in holding that, the appellant was not entitled to compensation as there was no Railway accident. The counsel for the claimant has vehemently argued that the Tribunal has taken erroneous view in holding that since the bus has collided with another bus, it could not be termed as Railway accident. On the other hand the counsel for the Railway while defending the award of the Tribunal has, with equal vehemence argued that the view of the Tribunal is correct. Learned counsel has with reference to the provisions of Sections 123 and 124 argued that the accident means an accident of the nature described in Section 124 of the Act. While referring to the provision of Section 124 of the Act, the counsel has further argued that since there was no accident of the nature as described in Section 124, the liability of the Railway does not extend to the grant of compensation when the death has occurred on account of the collision of the bus carrying Railway passengers. It has also been argued that the accident of the bus being not a direct consequence of any act of the Railways, no compensation can be granted on account of doctrine of remoteness. The precise argument of the counsel of the Railways is that the authorities could not foresee that there would be an accident of the bus carrying the passengers of Railways and therefore the claimant is not entitled to any compensation whatsoever.
5. In order to appreciate the rival contentions of the counsel for the parties it is necessary to have a look at the provision of” the Act in the first instance —
123 Definitions — In this Chapter, unless the context otherwise requires,–
(a) “accident” means an accident of the nature described in Section 124.
124. Extent of liability — When in the course of working a railway, an 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 such as would entitle a passenger who has been injured or has suffered a loss 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 to such extent as may be prescribed 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, damage or deterioration of goods owned by the passenger and accompanying him in his compartment or on the train, sustained as a result of such accident.
Explanation — For the purposes of this section “passenger” includes a railway servant on duty.
Section 2(31)
2. Definitions — In this Act, unless the context otherwise requires.
(31) “railway” means a railway, or any portion of a railway for the public carriage of passengers or goods, and includes.
(a) to (d) ….
(e) all vehicles which are used on any road for the purposes of traffic of a railway and owned, hired or worked by a railway; and
6. In the light of the aforementioned provisions and the points raised, we are of the considered view that the claimant is entitled to the grant of compensation on account of the death of her son. There can not be any dispute that accident means an accident of the nature which has been described under Section 124. However, a combined reading of all the provisions reproduced above leaves no manner of doubt that if the accident of a bus hired by the Railway authorities takes place, it would be, for the purpose of compensation, termed as a Railway accident. Section 124 lays down that if an accident occurs in the Course of working a railway, the Railway administration shall be liable to pay compensation to such extent as is prescribed. Section 2 defines certain words. Its Sub-Section (31) Clause (e) as has been reproduced above clearly defines as to what does railway mean. Railway includes all vehicles which are used on any road for the purpose of traffic of a railway or hired or worked by a Railway. In the instant case the bus in question having been hired by the Railway for carrying the passengers, the bus would be deemed to be included in the vehicles of the railway. If Section 124 is read alone without reading Section 2(31) (e), the counsel for the Railways would probably be correct in his argument but on harmonious construction being given to both the provisions of Section 124 and 2 (31) (e), the necessary and inevitable result which follows is that an accident which has taken place between the bus which is hired by the Railways with another bus it would be called Railway accident and nothing more and nothing short.
7. We do not find any force in the argument of the counsel for Railway that the doctrine of remoteness would apply in the present case. The principle, in view of the definition of the word Railway, is wholly inapplicable. The judgment given by single Bench of Allahabad High Court in Union of India v. B. K. Ojha, AIR 1972 Allahabad 266, which has been heavily relied upon by the counsel for Railway is inapplicable. The learned single Judge in the decided case was only concerned with defining as to what Railway accident was in the light of Section 82 (A) of the old Act and 2(31) of the New Act was not interpreted.
8. Once the conclusion regarding Railway accident is arrived at and it is held that a person travelling in a bus hired by railways is entitled to the grant of compensation, there is absolutely no difficulty in our way to grant compensation in the instant case. We are disinclined to endorse the finding of the Tribunal that the deceased was not a bona fide passenger of the Railways. Simply because the ticket number was not given by the appellant or there was no ticket found on the person of the deceased, it would be no ground to decline compensation. There is absolutely nothing wrong in the affidavit of the appellant that the ticket was lost as a result of the accident. The statement of the appellant that she was travelling along with the deceased son in the Railway cannot be disbelieved. Admittedly, the son of the appellant has died in the bus accident hired by the Railways and therefore the deceased has got to be held by a Court of law as a passenger of the Railway. Non-mention of ticket number in the application for claim can hardly be any legal ground to refuse compensation. How many persons remember about the ticket number and it would be too much for the Court of law to expect a mother to remember the ticket number of her deceased son. To say the least the Railway Tribunal has taken a view which is not at all possible. A sum of Rs. 5,000/- was admittedly paid by the Railway as ex-gratia payment and surely the Railway would not have made the payment if the deceased has not been a passenger. In the Act the compensation for the death of the passenger has been prescribed as Rs. 2,00,000/-. The mother having been given Rs. 5,000/- she is definitely entitled to another sum of Rs. 1,95,000/- which we be held that she is entitled to.
9. For the reasons recorded above the appeal is allowed. The award of the Railway Claims Tribunal of Gauhati Bench is set aside. The claim application would stand allowed. The Railway is directed to make the deposit of the sum of Rs. 1,95,000/- within a period of three months from today with the Railway Tribunal which be paid to the appellant by way of a bank draft on her being properly identified. In view of the fact that question of law did arise in the instant case, the parties are left to bear their own costs.
10. Before parting with the judgment we want to make it clear that we have decided the rights of the appellant vis-a-vis Railways
and not any right of the Railways vis-a-vis the Assam State Transport Corporation. If any claim is lodged by the Railway against ASTC, the same would naturally be decided in accordance with law.