Sri D. Srinivasa Vs. Union of India - Court Judgment

Excerpt:
- karnataka transparency in publicprocurements act, 1999.[k.a. no. 29/2000]. section 9: [anand byareddy, j]tender for establishing state-wide area network - constitution of tenders accepting authority multi-member committee (nsc) appointed for procurement entity discharging function to examine recommendations received from governments consultants received from governments consultants on implementation of state wide area network (kswan), to consider-recommendations of consultant on preparation of tender documents and detailed evaluation criterion in respect of same as well as to examine selection of bidder nsc also discharged function to recommend to government final bidder for network held, such committee shall be deemed to be tender accepting authority. appointment of technical sub-committee in tender security committee employs a vigilant circumspection and care. it cannot be said that it was a whimsical or mala fide action to discredit or disqualify any tenderer. - sunil kumar ghosh [1985]1scr555 .indeed he submits that he cited this judgment before the tribunal which was good enough to extract para-13 of the said judgment; yet it failed to apply its mind to the law laid down by the supreme court, which is in favour of the appellant. 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. ..9. in the instant case, as we have already noticed, there is clearly an averment in the claim petition that when the appellant was about to board the bangalore-hyderabad express train, a heavy iron girder which was loosely and carelessly fixed for electrification work, suddenly fell on the train and thereafter on the applicant resulting in grievous injuries to him. it clearly attract category 3(iii) 'other accident to a train'.thus there is no doubt in our mind that the tribunal failed to apply its mind in considering the third category, viz. , other accident to a train',in view of the decision of the supreme court in 'sunil kumar's case [1985]1scr555 .10. thus, we are clearly of the view that the order under appeal cannot be sustained and the same is liable to be set aside.order1. this appeal is by the appellant being aggrieved by the order made by the railway claims tribunal, bangalore bench on 28-8-1992 in o.a. no. 85/1992 holding that the application of the appellant for compensation under section 13a(ii) of the railway claims tribunal act ('the act' for short) was not maintainable.2. we have heard the learned counsel on both sides. 3. the case of the appellant is that when he was about to board the bangalore-hyderabad express train, a heavy iron girder which was loosely and carelessly fixed for electrification work, suddenly fell on the train and thereafter on him causing grievous injuries to him. therefore, he approached the claims tribunal seeking compensation under the provisions of section 13a(ii)of the act. the tribunal considering the maintainability of the application under s. 82-a of the indian railways act, 1890, (section 124 of the( present act, 1989), held that the application was not maintainable and directed the appellant to seek remedy before appropriate forum. hence, this appeal. 4. sri a. v. gangadharappa, learned counsel appearing for the appellant, argued that there was a clear averment in the claim petition that while the appellant was boarding the bangalore-hyderabad express train, a heavy iron girder which was loosely and carelessly fixed for electrification work, suddenly fell on the train and then on him, as a result of which, he sustained grievous injuries. that being so, the tribunal ought to have seen that s, 82-a (section 124 of the new act) was attracted as the incident amounted to accident occurring therein and that this word 'accident' came to be considered by the supreme court in union of india v. sunil kumar ghosh : [1985]1scr555 . indeed he submits that he cited this judgment before the tribunal which was good enough to extract para-13 of the said judgment; yet it failed to apply its mind to the law laid down by the supreme court, which is in favour of the appellant. sri gangadharappa, further argued that the conclusion of the tribunal holding that the application was not maintainable was erroneous and 'the same was liable to be reversed.5. sri n. s. sanjay gowda, learned counsel appearing for sri n. s. srinivasan, who, is the standing counsel for railways, howe'ver, argued that the respondent nowhere admitted the case of the appellant that a heavy iron girder which was loosely and carelessly fixed for electrification work suddenly fell on the train and thereafter on the applicant by which he sustained injuries and on the other hand he denied the said contention. he however submitted that the decision rendered by the hon'ble supreme court in sunil kumar's case : [1985]1scr555 (supra), could be distinguished on the facts of this case, in as much as if there was no accident at all as a result of either collusion between two trains or derailment of the train, as found insection 82a(1) of the act, therefore the view taken by the tribunal was justified. 6. the facts in sunil kumar's case : [1985]1scr555 :-- .'....? the respondent was travelling by a train in his capacity as a bona fide 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 exactly 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 travelling 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'.' on the said facts the supreme court considered the provisions of s. 82-a(i) of the act, as it stood then, referring to the words 'accident' and 'train', resulting in the observation that the word 'accident' could be by reason of 3 categories: (i) either collision, or (ii) derailment, or (iii) other accident to a train. there is therefore no room for any ambiguity on that score. 7. in : [1985]1scr555 , their lordships further held as follows:'10. 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 senseand reason buttress this proposition, for, the philosophy of s. 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 charges 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 th' 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.' 8. in : [1985]1scr555 of the same judgment their lordships having regard to the scope of s. 82-a, have concluded thus: '..... an accident is an occurrence or an event which is unforeseen and startles one when it takes place but does not startle 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 the normal course by almost everyone 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, iscalled a mishap or an accident.....' 9. in the instant case, as we have already noticed, there is clearly an averment in the claim petition that when the appellant was about to board the bangalore-hyderabad express train, a heavy iron girder which was loosely and carelessly fixed for electrification work, suddenly fell on the train and thereafter on the applicant resulting in grievous injuries to him. since the learned counsel for respondent disputes this averment found in the claim petition, we reserve liberty to the respondent to contest that position at the time of enquiry. however, one thing is clear that ifthis averment is proved satisfactorily, then a case is made out for the purpose of maintenance of this application under s. 82-a of the act, inasmuch as if, at the time of the applicant boarding the train, a heavy iron girder which was loosely and carelessly fixed for electrification work, fell suddenly on the train and then on him resulting in the injuries to him, it would, amount to an 'accident' coming within the purview of s. 82-a and not a 'mishap' to the passenger. it clearly attract category 3(iii) 'other accident to a train'. thus there is no doubt in our mind that the tribunal failed to apply its mind in considering the third category, viz., 'other accident to a train', in view of the decision of the supreme court in 'sunil kumar's case : [1985]1scr555 . 10. thus, we are clearly of the view that the order under appeal cannot be sustained and the same is liable to be set aside. 11. for the above reasons, we make the following order: this appeal is allowed. the order dated 28-2-1992 passed by the railway claims tribunal, bangalore bench, in o.a. no. 85/ 1992 is set aside. the tribunal is hereby directed to restore the application to its original number, hold an enquiry and dispose of it in accordance with law and in the light of the foregoing observations, after affording opportunity to both the parties of adducing evidence and of being heard. 12. appeal allowed.

Judgment:
ORDER

1. This appeal is by the appellant being aggrieved by the order made by the Railway Claims Tribunal, Bangalore Bench on 28-8-1992 in O.A. No. 85/1992 holding that the application of the appellant for compensation under Section 13A(II) of the Railway Claims Tribunal Act ('the Act' for short) was not maintainable.

2. We have heard the learned Counsel on both sides.

3. The case of the appellant is that when he was about to board the Bangalore-Hyderabad Express Train, a heavy iron girder which was loosely and carelessly fixed for electrification work, suddenly fell on the train and thereafter on him causing grievous injuries to him. Therefore, he approached the Claims Tribunal seeking compensation under the provisions of Section 13A(II)of the Act.

The Tribunal considering the maintainability of the application under S. 82-A of the Indian Railways Act, 1890, (Section 124 of the( present Act, 1989), held that the application was not maintainable and directed the appellant to seek remedy before appropriate forum. Hence, this appeal.

4. Sri A. V. Gangadharappa, learned counsel appearing for the appellant, argued that there was a clear averment in the claim petition that while the appellant was boarding the Bangalore-Hyderabad Express Train, a heavy iron girder which was loosely and carelessly fixed for electrification work, suddenly fell on the train and then on him, as a result of which, he sustained grievous injuries. That being so, the Tribunal ought to have seen that S, 82-A (Section 124 of the new Act) was attracted as the incident amounted to accident occurring therein and that this word 'accident' came to be considered by the Supreme Court in Union of India v. Sunil Kumar Ghosh : [1985]1SCR555 . Indeed he submits that he cited this judgment before the Tribunal which was good enough to extract para-13 of the said judgment; yet it failed to apply its mind to the law laid down by the Supreme Court, which is in favour of the appellant. Sri Gangadharappa, further argued that the conclusion of the Tribunal holding that the application was not maintainable was erroneous and 'the same was liable to be reversed.

5. Sri N. S. Sanjay Gowda, learned counsel appearing for Sri N. S. Srinivasan, who, is the Standing Counsel for Railways, howe'ver, argued that the respondent nowhere admitted the case of the appellant that a heavy iron girder which was loosely and carelessly fixed for electrification work suddenly fell on the train and thereafter on the applicant by which he sustained injuries and on the other hand he denied the said contention. He however submitted that the decision rendered by the Hon'ble Supreme Court in Sunil Kumar's case : [1985]1SCR555 (supra), could be distinguished on the facts of this case, in as much as if there was no accident at all as a result of either collusion between two trains or derailment of the train, as found inSection 82A(1) of the Act, therefore the view taken by the Tribunal was justified.

6. The facts in Sunil Kumar's case : [1985]1SCR555 :-- .

'....? The respondent was travelling by a train in his capacity as a bona fide 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 exactly 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 travelling 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'.'

On the said facts the Supreme Court considered the provisions of S. 82-A(I) of the Act, as it stood then, referring to the words 'accident' and 'train', resulting in the observation that the word 'accident' could be by reason of 3 categories: (i) either collision, or (ii) derailment, or (iii) other accident to a train.

There is therefore no room for any ambiguity on that score.

7. In : [1985]1SCR555 , Their Lordships further held as follows:

'10. 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 senseand reason buttress this proposition, for, the philosophy of S. 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 charges 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 th' 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.'

8. In : [1985]1SCR555 of the same judgment their Lordships having regard to the scope of S. 82-A, have concluded thus:

'..... An accident is an occurrence or an event which is unforeseen and startles one when it takes place but does not startle 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 the normal course by almost everyone 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, iscalled a mishap or an accident.....'

9. In the instant case, as we have already noticed, there is clearly an averment in the claim petition that when the appellant was about to board the Bangalore-Hyderabad Express Train, a heavy iron girder which was loosely and carelessly fixed for electrification work, suddenly fell on the train and thereafter on the applicant resulting in grievous injuries to him. Since the learned counsel for respondent disputes this averment found in the claim petition, we reserve liberty to the respondent to contest that position at the time of enquiry. However, one thing is clear that ifthis averment is proved satisfactorily, then a case is made out for the purpose of maintenance of this application under S. 82-A of the Act, inasmuch as if, at the time of the applicant boarding the train, a heavy iron girder which was loosely and carelessly fixed for electrification work, fell suddenly on the train and then on him resulting in the injuries to him, it would, amount to an 'accident' coming within the purview of S. 82-A and not a 'mishap' to the passenger. It clearly attract category 3(iii) 'other accident to a train'. Thus there is no doubt in our mind that the Tribunal failed to apply its mind in considering the third category, viz., 'other accident to a train', in view of the decision of the Supreme Court in 'Sunil Kumar's case : [1985]1SCR555 .

10. Thus, we are clearly of the view that the order under appeal cannot be sustained and the same is liable to be set aside.

11. For the above reasons, we make the following order:

This appeal is allowed. The order dated 28-2-1992 passed by the Railway Claims Tribunal, Bangalore Bench, in O.A. No. 85/ 1992 is set aside. The Tribunal is hereby directed to restore the application to its original number, hold an enquiry and dispose of it in accordance with law and in the light of the foregoing observations, after affording opportunity to both the parties of adducing evidence and of being heard.

12. Appeal allowed.