Sunday, October 21, 2018
Friday, October 12, 2018
Wednesday, May 30, 2018
Where the law needs to change track: on the Railways Act
The recent deaths of schoolchildren at an unmanned rail crossing highlight why the Railways Act must be amended
Monday, April 16, 2018
Saturday, April 14, 2018
The injured victims and representatives of the deceased in Mumbai's Wellington bridge stampede in September 2017 got compensation, subject to a maximum of 8 lacs, as per the scales provided under the Railway Claims Tribunal Act. The Railway Administration got a shot on its arm by praises from the press and the public in its stand not to contest the claims before the Tribunal. The Tribunal at Mumbai did a quick work at it awarding compensation of 8 lacs to next of kin of dead victims and lesser sums to persons injured, all in a day’s sitting. The status of victims as passengers was assumed, particularly in view of the fact that the bridge was exclusive for train commuters connecting the Parle Central Railway platform and West Wellington Railway platform to the flower market nearby. In all this, it was made to appear that the Railways did a charitable act of leaving the decision- making to the Claims Tribunal without at the same time admitting liability. The assumption is wrong, for, what the Railways did was a recognition of what is understood as strict liability and it could have done nothing less.
The Railways Act makes its administration liable for any accident or untoward incident whether or not there is fault or negligence on the part of the Railways for death or injury suffered by a passenger. The term ‘passenger’ in the Railways Act means a person who enters or exits the railway premises either with a platform ticket or a ticket or pass that gives lawful authority to travel. A railway staff is also included in this term. The ‘accident’ so called arises when a train collides with another or derails causing injury or death. An ‘untoward incident’ that makes the railways liable for injury and death when a there is a violent attack or terrorist act, robbery, rioting, shoot out, arson or a fall from the train. The exceptions are when the death or injury is suicide or an attempt, result of self infliction, his own criminal act, insanity or inebriation or due to ill health not arising out of injury caused in an untoward incident.
The term, untoward incident, has been interpreted purposively by Courts to aid injured victims or representatives of the deceased claimants who fall from the train while boarding and de-boarding and even when the acts are rash or negligent. In Anil Kumar Gupta v Union of India (2016), persons who had arrived in New Delhi for attending to open recruitment drive by ITBP and returning home arrived at the railways station and climbed on roof tops of railway coaches but met with serious injuries and death when they were hit by bottom of over bridge below which train was speeding through. The Supreme Court did not make much of the the fact that the passengers were getting on roof tops in spite of the Station Master and the guard warning them against such a dangerous mode of travel and the loco pilot showing his initial remonstrations by not chugging off and refusing to roll out. The train started on the insistence of the motley crowd atop the train but the SC found the railways ought to have been aware of inherent danger in allowing train to run with such speed having large number of persons travelling on roof top and awarded compensation to the victims. Terrorist attacks that were carried out on 26th November 2008 at Mumbai were also at Churchgate railway station and the silver lining in the otherwise macabre incident was quick adjudication by the Claims Tribunal that yielded to award of compensation of amount as prescribed by law which was at that time Rs 4 lacs at the maximum, apart from ex gratia sums released both by the Central and the State governments?
Stampedes ought to be seen as falling within the genre of untoward incidents and have indeed been held to leave a trail of liability under tort law by several High Courts. In Rakhee Sharma v State of MP (2014) and Sunil Kumar Singh v State of Bihar (2013) the High Courts were making the State liable for compensation to instances of stampede and the resultant deaths and injuries occurring in temple festivals. Even the fire and stampede deaths in Upahar film tragedy, all the courts made the licensing authority also liable for compensation, proportional to the extent of culpability as determined by them, apart from making the theatre owner liable. In Dhabwali fire and stampede tragedy, the local authority was made liable for compensation for its failure to protect the victims even while directing the school authorities who had organised the meeting to pay a larger slice of the compensation amounts. In two instances occurring at Delhi, there have been decisions of the Railways Claims Tribunal (Principal Bench) (Jagat Ray and another v Union of India OA 11/2005 dated 22.2.2008; Rajeswar Prasad and another v Union OA13/2005 dated 22.8.2006) making the Railways liable, rejecting the defence of Railway administration of non-liability. The decisions have held that an inevitable force that one passenger exerts on the other in stamped situations ought to be taken as "violence" that falls within the definition of "untoward incident".
God forbid, If there were to be another stamped at the platform or foot over bridge at the Railway Station , it shall not again become a subject of dispute by the Railway administration and the victims shall be paid compensation as legal obligation of the Railways and not as a gratuitous response to the supplications from various quarters.