Bhaskar Bhattacharya, J.
1. This appeal under Section 23 of the Railway Claims Tribunal Act, 1987 is at the instance of a claimant and is directed against the order dated September 8, 1998 passed by the Calcutta Bench of the Railway Claims Tribunal in Accident Claim Application No. 2067 of 1997 by which the tribunal rejected the claim of the appellant.
2. The appellant, as the mother of the injured victim, filed a claim for the injury suffered by her son for throwing of stone on a running train being No. 5621 near New Jalpaiguri Station on 25th October, 1996. According to the appellant, while travelling in the sleeper class of the said train, the victim suffered an injury in his right eye because of throwing of stone by some miscreants near the New Jalpaiguri Station, as a result, he was admitted to the Railway Hospital at Katihar. He was discharged on 26th October, 1996 from that Hospital and was readmitted to the Military Hospital at Jhansi on 28th October, 1996. From the certificate of the Eye Specialist, it appears that he became total blind in his right eye and thus, disfigured. It was alleged in the application supported by affidavit that there was an attack by a mob on the train near the New Jalpaiguri Station and the coach in which he was travelling was hit by thousands of stones. A supporting affidavit had been filed by one P.N. Gogai who was a fellow passenger and he has confirmed that there was a mob-attack on the train.
3. The claim application was opposed by the Railway Administration by filing written statement.
4. Although, the Railway Authority was directed to file an affidavit vide order dated July 14, 1998, for the reasons best known to it, the Railway did not comply with such direction. However, at the time of hearing, the representative of the Railway disputed the fact that there was violent attack on the train by a mob on that day. According to the representative of the Railway, there was no report with the Railway to show that there was such an attack by a mob on the particular train on 25th October, 1996.
5. The Tribunal below came to the conclusion that there was nothing on record to show that there was a mob attack on the train on that particular date except the affidavits affirmed in support of the claim. The Tribunal was of the view that if thousands of stones were thrown at the coach, there would have been other cases of injury among the fellow passengers and as such, it was a case of an isolate incident of stone throwing and such incident could not come within the definition of 'untoward incident' as provided in Section 123(c) of the Railways Act, 1989.
6. The Tribunal, thus, dismissed the application although it expressed its sympathy to the victim for the loss of his right eye.
7. Being dissatisfied, the claimant has come up with the present appeal.
8. Mr. Paul, the learned advocate appearing on behalf of the appellant, vigorously contended that in spite of specific direction given by the Tribunal, the Railway having failed to affirm affidavit disputing the allegation of the claimant that there was a mob attack on the train, the Tribunal below erred in law in not drawing adverse inference against the Railways for not affirming such affidavit.
9. Mr. Paul further contends that if it is assumed for the sake of argument that it was a stray incident of stone throwing, even then, the case comes within the definition of 'untoward incident' within the meaning of Section 123(c) of the Railways Act. He, therefore, prays for setting aside the order passed by the Tribunal and for passing an award on the ground that the incident complained of has disfigured the face of his client's son.
10. Mr. Gupta, the learned advocate appearing on behalf of the Railways, on the other hand, has opposed the aforesaid contention advanced on behalf of the appellant and has supported the view taken by the Railway Tribunal. In support of such contention, he has relied a decision of the learned single Judge of Bombay High Court in the case of Union of India v. Sanjay Sampatrao Galkwad reported in : AIR2002Bom436 where the said learned Judge came to the conclusion that on a stray act of stone throwing on the train, the Railway was not liable to pay any compensation to a passenger for the injury caused to him.
11. Therefore, the first question that falls for determination in this appeal is whether the learned Tribunal below erred in law in disbelieving the case of mob-attack on the train when the Railway Authority did not come forward with any affidavit disputing such fact in violation of the specific direction given by the tribunal to file such affidavit.
12. It appears from record that the Tribunal passed explicit direction upon the Railway Authority to state by affidavit whether there was any incident of mob-attack on the train on a particular date but in spite of such direction, the Railway Authority did not affirm affidavit denying such fact. We have already pointed out that the claim of mob attack was supported also by the affidavit of a co-passenger.
13. In our view, if in spite of giving direction upon the Railway Authority to file affidavit disputing the allegation of the claimant about the mob attack on the train, the Railway Authority decides not to file such affidavit, the court should draw adverse presumption against the Railway.
14. We are quite conscious that even the uncontroverted statement on oath of a particular person can be disbelieved provided such statement is found to be untrue from the other materials on record or is so absurd that no reasonable person would believe such statement.
15. In the case before us, specific case of the appellant supported by affidavit is that a mob attacked the train near the New Jalpaiguri Station and had thrown stones thereon. Such allegation is not disputed by filing any counter affidavit. In other words, the Railway is not prepared to dispute such fact on oath. The allegation made in the application is not so absurd that it cannot be believed by any reasonable person when the injury resulting from the stone throwing has been established. We, therefore, find that merely because there was no case of injury except that on the claimant's son for such stone throwing, the fact pleaded cannot be disbelieved.
16. The next question is whether the case comes within the purview of 'untoward incident' as provided in Section 123(c) of the Act. To consider the aforesaid point, it will be profitable to refer to the definition of 'untoward incident' as provided in Section 123(c) of the Act as also Section 124A of the Act providing payment of compensation for untoward incident and those are quoted below:
123(c). 'Untoward incident' means-
(1)(i) the commission of a terrorist act within the meaning of Sub-section (1) of Section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or
(ii) the making of a violent attack or the commission of robbery or dacoity; or
(iii) the indulging in rioting, shoot out or arson.
by any person in or on any train carrying passengers, or in a waiting hall, cloakroom or reservation or booking office or on any platform or in any other place within the precincts of a railways station; or
(2) the accidental falling of any passenger from a train carrying passengers.)
124-A. Compensation on account of untoward incidents.- When in the course of working a railway an untoward incident occurs, 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 the dependant of a passenger who has been killed 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, or injury to, a passenger as a result of such untoward incident:
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.
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.)
17. Before we proceed to examine the scope of those provisions, we should bear in mind the following well known rule of interpretation of the statute reiterated by the Apex Court in the case of Union of India and Ors. v. Deoki Nandan Agarwall reported in AIR 1992 SC 96 (Para 14):
It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provisions is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of Instrumentalities.
18. A plain reading of the aforesaid Sections makes it clear that In order to bring the case within the meaning of 'untoward incident' and to claim damages arising out of any injury therefrom, it is not necessary that the attack must be by a mob; even a violent attack by any person in or on any train carrying passengers is sufficient, whether or not, there had been any default, neglect or wrongful act on the part of the Railway. The word 'any' according to the plain dictionary connotation means 'any or some or all'. In Black's Law Dictionary, it is explained thus:
Word 'any' has a diversity of meaning and may be employed to indicate 'all' or 'every' as well as 'some' or 'one' and its meaning in a given statute depends upon the context and subject matter of the statute.
19. In the statute we are concerned, the word 'any' has been placed before a singular noun viz. person. According to Section 13(2) of the General Clauses Act, unless there is anything repugnant in the subject or context, the words in singular shall include plural, and vice versa. Therefore, injury or death of a 'passenger' within the meaning of the explanation added to Section 123(c) of the Act arising out of the commission of a terrorist act or violent attack done by one person or more in or on a train will give rise to the cause of action for filing of an application. Similarly, the robbery committed by one person or more or the dacoity committed by five persons or more in a train will also come within the meaning of the untoward incident. A terrorist act or a violent attack on the train can be done by a single person and such thing can occur even though the person responsible for such act is actually not travelling in the train and for that reason, the legislature included the words 'in or on any train'. For committing any robbery or dacoity the robber or the dacoits, as the case may be, must be a traveller of the train unless aided and abetted from outside. Thus, the legislature never intended that words 'any person' used in the Section cannot be a single person or must be a traveller of the train. At this stage we may profitably refer to the decision of the Supreme Court In the case of Central Bank v. The worker reported in : [1960]1SCR200 where the Apex Court while interpreting the phrase 'the banking company shall not employ any person', turned down the argument that such person meant only the person inimanagerial or administrative category with the following observations (Para 21):
The Section says that 'no banking company shall employ 'any person', and we do not see how the expression 'any person' can be restricted to those on the managerial or administrative staff only. We cannot arbitrarily cut down the amplitude of an expression used by the legislature.
20. By relying upon the aforesaid observations, we are of the view that we also cannot arbitrarily cut down the amplitude of the expression 'any person' used by the legislature to mean only the violent act of a mob but not the violent act of a single person.
21. With great respect to the learned single Judge of the Bombay High Court in the case of Union of India v. Sanjay Sampatrao Gaikwad reported in : AIR2002Bom436 relied upon by the learned advocate for the respondent, we are unable to subscribe to the view taken by His Lordship. In that case, it was held that throwing of stone by stranger did not come within the expression 'violent attack by any person on any train' so as to bring it within the purview of untoward incident. The following relevant observations of the court in discarding the act of stone throwing from the definition of untoward incident are quoted below (Para 12):
The Legislature has certainly communicated what it wants to compensate for. It did not want to compensate for all and every kind of untoward incident taking place In the trains or in the precincts of the Railways. The Legislature has chosen the events or activities which had taken place frequently during the period of its large working. The Legislature has selected four categories of the untoward incident. These are the common incidents which had taken place in the course of journey in the train or in the precincts of the Railways. The stone throwing by an outsider on the train certainly is not an act of a terrorist as defined in the TADA. It also does not amount to a violent attack or the commission of robbery or dacoity. The Legislature has contemplated a violent attack which can be equated with the commission of robbery or dacoity Such events do take place very often within the four corners of the Railway compartments or the precincts of the Railways. By no stretch of Imagination I can Include In this class a stone thrown by a boy standing outside the Railways or even a miscreant at a running train for the sake of fun or out of pervert mentality to cause injury to others for nothing.
(Emphasis supplied by us)
22. We are unable to accept the reasoning of the learned single Judge of the Bombay High Court that the violent attack must be something to be equated with robbery or dacoity. If that were the intention of the legislature. It would not include 'any violent attack In or on a train by any person' in addition to dacoity or robbery or terrorist act. A simple stone throwing towards a running train is bound to result in a violent attack on the train because of the added velocity with which the train is running.
23. The word 'violent' according to the Webster's New World Dictionary and Thesuarus means as follows:
Acting with or characterized by great physical force, so as to injure, damage or destroy; acting or characterized by force unlawfully or callously used.
24. According to the Oxford Talking Dictionary, the word 'violent' means:
Having a marked or powerful (esp. physical) effect; of an action: involving or using great physical force or giving esp. in order to cause injury; not gentle or moderate.
25. Therefore, the unlawful throwing of a stone by a person on a running train resulting in severe Injury must be said to be an untoward incident within the meaning of Section 123(c) of the Act.
26. The next question is what will be the amount of compensation payable in this case. Although Mr. Paul, the learned advocate appearing on behalf of the appellant tried to convince us that in this case there is disfiguration of the face of the injured and as such, the compensation should be Rs. 4,00,000/- in terms of Item No. 5 of part-II of the Schedule providing compensation for 'very severe facial disfigurment', we are not at all impressed by such submission. In our opinion, the case before us being one involving 'loss of one eye without complications, the other being normal', as provided In the Item No. 23 of Part-Ill, the amount of compensation should be Rs. 1,60,000/-, as indicated therein. There being a specific item covering this type of injury, it will not come within the meaning of 'very severe facial disfiguration'. The appellant is, or course, entitled to get interest on the awarded amount from the date of making the claim i.e. November 25, 1997 till actual payment. We, accordingly, direct the respondents to pay interest on Rs. 1,60,000/- from December 1997 till December 1999 at the rate of 12% per annum and from January 2000 till actual payment at the rate of 7% per annum. The entire amount, both the principal and the interest, should be paid within two months from today.
27. We, therefore, allow the appeal, set aside the award impugned, and pass an award in terms of our above direction. In the facts and circumstances, there will be, however, no order as to costs.
Rudrendra Nath Banerjee, J.
28. I agree.