P L D 1988 Lahore 652 (PLP)

ABAID ULLAH KHAN, J.‑‑this appeal against the judgment and decree of the learned Civil Judge, Lahore, dated the 7th January, 1981, decreeing the respondents' suit under the Fatal Accidents Act, 1855(XIII of 1855), for the recovery of damages amounting to Rs.3,49,500 in consequence of the death of Mr. Muhammad Nurullah, son of respondents A and 2, husband of respondent 3 and father of respondent 4, arises out of the following circumstances. The late Mr. Muhammad Nurullah was Divisional Engineer 11 in the Pakistan Western Railways (now Pakistan Railways) and was posted at Lahore. On the 6th August, 1966, in the course of performance of official duty, he set out from Lahore by 213 Up passenger train for Sheikhupura, where he had to conduct inquiry. Saloon No. ERB‑162, in which he was travelling, was attached to the rear of the train. The train left Lahore Railway Station at 2.45 a.m., and after travelling a distance of about 1‑3/4 miles came to a halt outside the Up outer signal of Badami Bagh Railway Station. At 2.52 a.m.'. 367 Up parcel mixed express train left Lahore Railway Station and about four minutes later collided with the rear portion of 213 Up Passenger Train which was standing in the block section outside up outer signal of Badami Bagh Railway Station. As a result of collision the saloon in which Muhammad Nurullah was travelling was completely smashed and Mr. Muhammad Nurullah as also his trolley man, who was travelling with him in the saloon, were killed. Some other passengers received injuries.

2. Judicial inquiry in the accident conducted by the Additional Deputy Commissioner, Lahore, and departmental inquiry held by the Central Government Inspector of Railways disclosed that the accident had occurred due to the gross negligence and carelessness of employees of the Railway department.

3. Mr. Muhammad Nurullah was born on the 13th July, 1937 and was 29 years and 20 days old when he died. He had a brilliant academic career, secured first division throughout. and stood first in the University in B.Sc.(Hons,), Civil Engineering. He was selected for class I post and was drawing pay of Rs.850 per mensem in the then senior class I scale of Rs.750‑75‑1,

500. He left behind a young wife (respondent 3) and minor son (respondent 4). His father respondent 1, was serving as Superintending Engineer in the Irrigation Department of the Punjab Government and was due to retire in 1968. His mother, respondent 2, was 50 years and 9 months of age when he expired. He is said to have been rendering financial assistance to the tune of Rs.150.00 per mensem to her mother and after the retirement of his father he was to double the amount of such assistance and was further to increase its quantum after the demise of the father. Besides maintaining his wife and son he was to support his father as well after the latter's retirement.

4. As asserted by the respondents Mr. Muhammad Nurullah was to rise in his service career and in all probability was to go to the top post in the department. His income would have thus gone up and according to the then existing scales of pay he was expected to be receiving monthly salary of Rs.2,700.00 at the time of his retirement on reaching the age of 60 years.

5. Keeping in view the present and future earnings of the deceased end the assistance he would have given to the respondents a claim for the recovery of Rs.3 49,500.00 was put forth in the suit instituted by the respondents on the 1st September, 1967, when the Civil Courts reopened after the August summer vacations. Compensation for respondents 1 and 2 was worked out on the expectation that they would survive up to the age of 75 years. Respondent 1's share in the compensation was assessed at Rs.33,600.00 and respondent 2's at Ks.72,000.00; respondents 3 and 4 claimed Rs.2,40,000.00.

6. In the written statement the appellants impliedly denied that the accident had taken, place due to the negligence and carelessness of the employees of the Railway department. They pleaded that respondents 1 and 2 were not dependent upon the deceased and as such were not entitled to any compensation. They disputed the correctness of the expected financial assistance and basis thereof as set forth by the plaintiffs.

7. The learned Civil Judge seized with the trial of the suit found no difficulty in concluding that death of Mr. Muhammad Nurullah had occurred due to the negligence of the appellants' employees. He accepted the respondents claim touching damages and decreed the suit. Respondents 1 and 2 were to get 8s.1,09,500.00 and respondents 3 and 4 Rs.2,40,000.00.

8. It may be mentioned that respondent 2, mother of Mr. Muhammad Nurullah died near the end of trial of the suit shortly before the impugned judgment was announced. She is substituted in appeal by her two sons and two daughters. he learned counsel for the appellants did not make any serious to dislodge the finding of the learned trial Court that the loss of life of Mr. Muhammad Nurullah was the result of the accident which had taken place due to the negligence of the appellants employees The report of inquiry conducted by the Central Government Inspector of railways, EXh.P.l, deals with all the aspects of the Accident in a detailed manner and fixes the responsibility for the accident upon the driver, fireman and trouble shooter of 367 up parcel mixed express train as also upon the driver of 213 up passenger train. According to the inquiry held by the Railway department itself, the railway employees were responsible for causing the accident. The appellants are answerable for the negligence of their servants and liable to pay damages to the respondents.

10. The learned counsel for the appellants raised a new, point which had neither been urged before the learned trial Court nor included in the grounds of appeal, for fixing the upper limit of quantum of damages to ten thousand rupees according to the provisions of section 82‑A of the Railways Act, 1890(IX of 1890), which runs as under, ‑ "82‑A‑‑(l) 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 person who has been 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 occasioned by the death of the passenger dying as a result of such accident and for persona injury and loss, destruction or deterioration of animals of goods owned by the passenger and accompanying the passenger in his compartment or on the train, sustained as a result of such accident. (?) The liability of a railway administration under this section shall in no case exceed ten thousand rupees in respect of any one person." In the first place section 82‑A is inapplicable to the case of Mr. Muhammad Nurullah who was travelling as a railway servant on duty and not as a passenger. The Railways Act, especially its sections 47, 62 to 64, 68, 09, 71, 71‑A to 71‑H, 99 to 105, 108, 109, 113, 113‑A, 114, 116 to 119, 121 to 123, 133‑A, 137, 138 and 145, rules framed thereunder and instructions issued by the Railway department from time to time, mark out clear distinction between the railway servants performing duty and passengers, railway servants and passengers are treated as categories apart, The drivers, guards and other staff on duty accompanying or travelling by train cannot be classified as passengers for whose carriage the trains run. The staff handling running of train and other railway servants, including officers who are on the train in the course of performance of their official duty, cannot be equated with or taken to be passengers. Though 'railway servant' is defined in section 3(7) of the Railways Act as meaning any person employed by a railway administration in connection with the service of the Railways, 'passenger' is nowhere defined in the Act. According to the consensus expressed in the judgments reported as Union of India v. Sardarni Harbans Kaur AIR 1951 Punjab 164, Ratmehandra Prasad Sinha v. Union of India AIR 1959 Patna 316, Smt. Yashoda Devi v. Union of India AIR 1979 Allahaba4i 287 (D.B), and Smt. Sundri 'v. Union of India A.I.R 1984 All. 277 (F.B.) for being a passenger within the meaning of section 82‑A of the Act, he must be a person travelling with a ticket, pass or permission of the Railway authority.

11. The argument of the learned counsel for the appellants that since Mr. Muhammad Nurullah could be presumed to be travelling oil a pass or with the permission of the Railway department he should be taken to be a passenger, as the term is used in section 82‑A, 0 too spacious to be accepted at its face value.

12. The learned counsel's interpretation of section 82‑A to the effect that notwithstanding any other provision of law, including 'the Fatal Accidents Act, to the contrary, the railway administration could not be burdened with the liability of paying anything in excess of ten thousand rupees seems to ignore the events and circumstances which necessitated ' the legislation and introduction of section 82‑A. Before the insertion of section 82‑A by section 2 of the Indian Railways (Amendment) Act, 1943011 of 1943), the general rule was that a carrier of passengers was not as absolutely liable for the safety of passengers as a carrier of goods was for the safety of goods, but was liable for the injuries to passengers which were caused by its neglect in failing to exercise proper degree of care, skill and diligence for passengers, safety. In other words, the Railways could be sued in tort or compensation or damages. Even for the purpose of succeeding in such a claim the law required proof of negligence on the part of the railways. In 1942 it was felt that ‑when an accident occurred and the railway was held free from liability on account of the heirs and legal representatives or dependants failing to prove negligence of the Railways in such a matter, that was likely to cause great hardship to the dependants. With this end in view the bill was ‑moved which was ultimately passed as the Indian Railways (Amendment) Act, 1943(111 of 1943), on the 22nd September, 1942. The statement of objects and reasons for moving the bill is given below.‑ "Under the existing provisions of the law, no compensation is payable to those injured or to the dependants of those killed in a train accident that is not due to negligence on the part of a railway administration or its servants. Considerable hardship has been caused in consequence, particularly amongst the poorer classes, as dependants of those killed and injured in accidents due to sabotage for example, were unable to obtain any compensation for the loss they had sustained. The Bill seeks to remedy this state ‑ of affairs by rendering Railways liable to pay compensation in all train accidents whether due to negligence or not, but to limit the liability of all such cases to a fixed sum in the case of any individual passenger." According to the interpretation that section 82‑A received in Union of India v,. B.K. Ojha AIR 1972 All. 266 and Mst. Yashoda Devi v. Union of India AIR 1979 All.287 (D.B), the railway administration is required to pay compensation in the case of accident by collision between trains for whatever reason the accident has taken place and even in the absence of any ‑wrongful act, neglect or default on its part and notwithstanding any other provision of law to the contrary. Right of a person to sue the Railway department in tort or under the Fatal Accidents Act as also the quantum of liability of the Railway department in such an action, even in case of injury to or death of a passenger is not touched and remains unaffected by section 82‑A. The respondents did not claim compensation under section 82‑A of the Railways Act rather they brought suit under the Fatal Accidents Act which was enacted in order to provide compensation to families for loss occasioned by the death of a person caused by an actionable wrong. The liability of Railway department in a suit under the latter Act is not circumscribed by any limit. The suit would have been maintainable even if Muhammad Nurullah had been travelling as passenger. The limit of Rs.10,000 set down in subsection (2) of section 82‑A has no bearing on the respondents' suit.

13. The learned counsel for the appellants sought for the reduction of the amount of compensation which had been claimed for respondent 2, Mr. Muhammad Nurullah's mother, on the assumption that she was to live upto the age of 75 years but she died when she was only 65 years of age. It is worth mentioning that compensation was calculated on the basis of the pay Mr. Muhammad Nurullah was getting at the time of death and increased pay that he would have received in the pay scales in force when he died on the 6th August, 1966. Those pay scales were successively revised in upward direction in 1973, 1977, 1983 and 1987, as is visible from the following table‑ Pay scales in 1996 National scales of pay (1973) Revisional National pay scales (1977) Basic pay scales (1983) Basic pay scales (1987) 750‑75‑1500 [No.18] 1000-75‑1750 1350‑75‑1650/100-2150 2100‑150‑3600 2710‑195‑4660 1700‑50‑1900 [No. 19) 1800‑80‑2200 2250‑100‑2750 3200‑160‑4480 4130‑205‑5770 2000‑100‑2200 [No. 20] 2300‑100‑2600 2600‑125‑3225 3300‑180‑5240 4900‑235‑6720 2750 Fixed [No. 21] 2750 3000‑150‑3750 4200‑225‑6000 5420‑290‑7740 3000 Fixed [No. 22] 3000 3250‑200‑4250 500‑250‑6500 5800‑325‑8400 In case of every revision there was handsome increase in pay and the pay in the existing scales is two to three times the pay of the scale of 1966. With substantial increase in pay and with the ever increasing rate of inflation Mr. Muhammad Nurullah would have given financial assistance to the respondents much more than what is given in the plaint and on the basis of which the respondents put forth their claim in the suit. In such an event respondent 2 would have been paid during her life no less than what she had claimed. As a matter of fact the respondents' claim has started looking very modest. It needs no pruning.

14. We cannot help express our feeling that the appellants have a unjustifiably resisted the respondents' suit and pursued the appeal. They could have shown grace in conceding the respondents' claim. Almost twenty‑two years have passed since Mr. Muhammad Nurullah died and the respondents have not received a penny in their hands ' It is hardly the way to treat dependants of one's employee who laid down his life In the course of performance of official duty. The ends' of justice demand that the appellants should pay interest at the rate of 8 per cent per annum on the decretal amount from the date on institution of the suit till payment thereof. The money paid by the appellants in the Court was ordered to be invested in khas deposit account. The interest or profit accruing from the amount will be deposit to the respondents. The appellants will also pay the costs of the appeal which we dismiss. A.A./C-24/L Appeal dismissed.