Acuthan K. and others v Union of India

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE P.SOMARAJAN MONDAY, THE 31ST DAY OF JULY 2017/9TH SRAVANA, 1939 MFA.No. 43 of 2014 (C) -------------------------------AGAINST THE JUDGMENT IN OA 46/2013 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM DATED 26-12-2013 APPELLANTS/APPLICANTS: - -------------------------------------------- 1. ACUTHAN K., S/O.LATE ACHUTHAN, AGED 45. 2. LEELA K., D/O.LATE ACHUTHAN, AGED 43 3. JAYARAJAN K., S/O LATE ACHUTHAN, ALL ARE RESIDING AT KOTTAPARAMPIL HOUSE, ERAVIMANGALAM, PERINTHALMANNA 679 340. BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENT/RESPONDENT: - --------------------------------------------- UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY,CHENNAI 600 001. BY ADV. SMT.REZIYA.P.A.,SC, RAILWAYS BY ADV. SRI.N.K.SUBRAMANIAN, SC, RAILWAYS BY SRI.C.S.DIAS,SC, RAILWAYS THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 31-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DMR/- ## **K. HARILAL & P. SOMARAJAN, JJ.** ------------------------------------------------ M.F.A. (RCT) No.43 of 2014 -----------------------------------------------Dated this the 31[st] day of July, 2017 ## J U D G M E N T ## **K. Harilal, J.** The appellants are the legal heirs of the deceased Lakshmi, who died in an untoward incident. According to the applicants, on 24.8.2012 at about 12.30, when the said Lakshmi was boarding the train from Melattur Railway Station, she stepped into the compartment and before she could gain her balance, the train suddenly moved forward, as a result of which she lost her grip and accidentally slipped and fell down from the train into the track. She was a _bona fide_ passenger and she died in the aforesaid untoward incident. Therefore, the applicants are entitled to get compensation for the death of the deceased. 2. The respondent contended that the deceased was not a _bona fide_ passenger and the accident due to which she died would not fall in 'the accidental falling from a train' and the accident was caused by negligence from the part of the deceased. Therefore, the said accident would fall under self inflicted injury contemplated under Section 124A. M.F.A. (RCT) No.43 of 2014 2 3. On the aforesaid rival pleadings, both parties adduced evidence consists of the oral testimony of PWs 1 & 2 and RW1 and the documentary evidence Exhibits A1 to A5 and R1 and R2. After considering the aforesaid evidence, the Tribunal dismissed the application on a finding that the deceased was not a _bona fide_ passenger and the death would not fall under untoward incident as it would amount to 'self inflicted injury' falling under the exception. The legality and correctness of the findings under which the Tribunal dismissed the application has come up in this appeal for re-consideration, on re appraisal of evidence. 4. Heard the learned counsel for the appellants and the learned counsel for the respondent. 5. Going by the judgment, it is seen that the application has been dismissed on the ground that the deceased was not a _bona fide_ passenger and the alleged accident would not come under 'accidental falling of a passenger from a train carrying passengers' contemplated under Section 123(c)(2) of the Railways Act. It was also found that the death of the deceased would fall under 'self inflicted injury'. 3 M.F.A. (RCT) No.43 of 2014 6. It has come out in evidence that the accident, in which the said Lakshmi died, occurred in the Melattur Railway Station. It is the case of the applicants that while boarding the train, the train moved and she fell down and the train run over her body. The respondent also admitted that the accident occurred when she was trying to board a train. Then the questions to be considered are (1) whether the deceased Lakshmi was a _bona fide_ passenger? (2) whether the falling from train was during the course of boarding a moving train? This Court in **Union of India v. Parameswaran Pillai** [2012 (4) KLT SN 25 (C.No:25)] held that the fact that the passenger had purchased ticket and is a _bona fide_ passenger is to be presumed, unless it is shown to be otherwise. 7. In order to prove the case of the applicants, a co-passenger was examined as PW2. He deposed that the said Lakshmi purchased a ticket from Melattur Railway Station and after that while she was boarding the train, the train moved abruptly and she fell down and after the falling, the train run over her body and she died while she was taking to the hospital. In order to controvert the evidence of PW2, the respondent examined RW1, who is an employee under Halt M.F.A. (RCT) No.43 of 2014 4 Agent. Admittedly, in Melattur Railway Station, the respondent has not facilitated a ticket counter and said RW2 was allegedly working under a Halt Agent. In other words, she was a stranger to the respondent and there is no connection between the Railway and RW2. We have meticulously gone through the evidence of RW2. She herself admitted that all the entires in Exhibit R1, Daily Train Cash Book, was made after the accident, by her husband who also have no kind of connection with the respondent Railway. It is also admitted that the Halt Agent Geetha was abroad. It is pertinent to note that Exhibit R1 is the copy of Daily Train Cash Book and the same was not authenticated by any Officer under the respondent Railway. On the basis of the said document, she deposed that on 24.08.2012 no ticket was issued for a journey from Melattur to Cherukara. For the reasons stated above, we are of the view that no reliance can be placed either on the deposition of RW2 or Exhibit R1, the photocopy of an alleged Daily Train Cash Book, but the Tribunal has went wrong by relying on the evidence of RW1 and Exhibit R1. 8. On the other hand, we have meticulously gone through the evidence of PW2. PW2 is a co-passenger, but he M.F.A. (RCT) No.43 of 2014 5 was a stranger to the deceased. So, he can be considered as an independent witness. He deposed in cross-examination that he had found the deceased Lakshmi in the queue for purchasing ticket and after purchasing the ticket she was found moving towards the train. Thereafter, he further deposed that he had seen the falling of Lakshmi from the train while the train was moving. According to him, she lost her balance and sipped, when the train moved forward abruptly, during the course of boarding. So, it cannot be said that she was boarding a moving train. There was no evidence to prove that she started boarding, when the train was on the move. We are of the opinion that even though he was subjected to crossexamination, nothing brought out to discredit the evidence of PW2. Thus, the applicants/appellants had succeeded in proving that the deceased Lakshmi was travelling with a valid ticket and she fell down, when the train moved abruptly, when she was boarding the train. We find that the falling of the deceased Lakshmi would come under “accidental falling of a passenger from a train” contemplated under Section 123(c)(2) of the Railways Act. 6 M.F.A. (RCT) No.43 of 2014 9. The burden is heavy on the respondent Railway to rebut the said presumption. But, in the instant case, we have already held that no reliance can be placed either on the deposition of RW1 or on Exhibit R1. Thus, the Railway has miserably failed to rebut the presumption and we hold that the presumption that she was a _bona fide_ passenger will prevail. 10. In this context, it is pertinent to note that even in the statutory report filed by the Divisional Railway Manager, the respondent has no case that the deceased was not a _bona fide_ passenger and it is stated that at the time of inquest, no ticket was found from her body. Merely on the reason that no ticket was found from her dead body, it cannot be presumed that she was travelling without any valid ticket, particularly when the train run over her body. 11. The next question to be considered is whether the death due to falling from a train would fall under self inflicted injury contemplated under Clause (b) of the proviso to Section 124A. In M.F.A.No.46/2015 this Court has elaborately considered the aforesaid question and answered that death due to falling from train would not fall under self inflicted injury contemplated under Clause (b) of the proviso to Section 124A M.F.A. (RCT) No.43 of 2014 7 of the Railways Act. Therefore, the said proposition would be applicable to the instant case also and we found that the death of Lakshmi shall not be deemed to be caused by a self inflicted injury falling under the exception to 124A of the Railways Act. In the above analysis, we find that the impugned order passed by the Tribunal is liable to be set aside and we do so. The application is remitted back to the Tribunal for considering the quantum of compensation. ## **K. HARILAL (JUDGE)** ## **P. SOMARAJAN (JUDGE)** DMR/-