S.K. Desai, J.
1. This is an appeal filed against the decision of the learned Civil Judge Senior Division, an Ex-Officio Claims Commissioner, Pune, in Miscellaneous Application No. 150 of 1979 on his file rejecting the applicant's (appellant herein) claim for compensation on the ground that he was not entitled to claim compensation under the provisions contained in Section 82-A of the Indian Railways Act.
2. At the commencement of this appeal it was conceded on behalf of the railway administration that the applicant was a passenger who had paid for the ticket which was payable by him as per the rule although undoubtedly he was an escort accompanying the goods consigned by Ms employers in a goods train. In view of this concession no further arguments have been advanced by Mr. Kudrolli on this point.
3. Under General Rules 136 to be found in Indian Railways Act by Gyan Prakash (3rd Edition) it is provided that such escort may be allowed to accompany motors cars, other vehicles, tractors and machinery in full wagon-loads on payment of third-class ordinary fares. The rule also provides for indemnity to be given by the consignor as per appendix 1/1. Under the indemnity the consignor indemnifies the railway administration for injury or loss to his employees accompanying the load. That, however, cannot by itself relieve the railway administration from any claim by such employee, if it is otherwise liable. However, under the indemnity it might get a cause of action against the employer subsequently.
4. Before going to the provisions contained in Section 82-A we may dispose of two other objections to the maintainability of the action which appear to me to be without substance. The first of these was that the claim was not filed before a Claims Commissioner. However, even in the written statement, the Civil Judge, Senior Division has been designated as Ex-Officio Claims Commissioner and the point has not been specifically taken in the written statement. The plea in the written statement is merely that this is not covered by Section 82-A since the train was a goods train and not a passenger train. No such technical plea can be allowed to be taken for the first time in appeal.
5. The second plea which seems equally without substance is that these was Do collision or accident to the train or any part thereof and hence although the applicant may have been injured he would not be entitled to prefer a claim within the provisions contained in Section 82-A. The operative part of Section 82-A may now be set out :
82-A. (1) 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....
6. In this case it is material to refer to the evidence given by witness No. 1 for the opponent viz., the Railways, He is the Asstt. Yard Master, Dhond. He has stated as fellows :
Hump is an up gradient from which the wagons are allowed to roll down for the purposes of formation. The concerned wagon when brought on the hump was expected to roll down on the line D.C. No. 3. A vacant line for 30 wagons was only available. A lot of (55) wagons was brought on the hump. It was a goods train in the process of formation. The goods train was not formed completely and the accident took place before hand. When the accident took place, the wagon in question was stationary. Due to the impact of other wagons it rolled off.
In my opinion this evidence clearly indicates an accident to a part of the train although the damage to the train may not be extensive.
7. We now come to the crux of the appeal viz., whether the beneficient provision in Section 82-A is to be made available to the passengers travelling on a passenger train only or will be available to a person travelling on a valid and proper ticket and who is passenger irrespective of the nature of the train, There is no warrant, in my opinion, to restrict the beneficient provision only to the former category. The applicant as an escort was bonafide (sic. passenger) travelling on a train owned by the respondents and for the purpose of his journey he had paid full fare as provided under the rules. If that be so then if there is a collision or accident if on account of the collision or accident he has suffered injury then it must follow that he would be entitled to claim the amount for the injury as provided by Section 82-A subject to the limit provided in Section 82-A (2).
8. It is to be regretted that whilst disposing of the Miscellaneous Application, the lower Court did not apply its mind the quantum of amount which would be payable to the applicant if its view was not upheld in appeal. This will require me to work out the claim. The applicant has stated that whilst he was sitting in a wagon there was an impact. The reason for it seems to be the negligence of the railway employee who forget to apply hand brakes to the rear wagons. Due to the impact the applicant was thrown out and fell on the railway line and the wagon rolled over his legs and cut off both. The medical certificates have been produced and therefore the extent of the injury will have to be accepted.
9. It seems to be the agreed position that loss of two legs under these circumstances is total disablement which entitles the applicant to claim 100% of the amount allowed. Under the Schedule loss of one leg below the knee is provided for at 50%, hence loss of both the legs would come to 100%. Now as the maximum compensation for death or total disablement is fixed at rupees fifty thousand, this would appear to be a case where the applicant would be entitled to the full amount. This has not been disputed by Mr. Mandrekar. In this view of the matter the appeal is allowed and the impugned order and judgment dismissing the application who no order as to costs is set aside and in lieu thereof the application is granted and the opponents, the railway administration and the Union of India as owners thereof are directed to pay to the original applicant before me the sum of Rupees Fifty Thousand. As this is special claim there cannot be, in my opinion, unless specifically provided, orders for interest or costs.