Arun Mohan v. Union of India

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU FRIDAY, THE 11TH DAY OF NOVEMBER 2016/20TH KARTHIKA, 1938 MFA.No. 77 of 2016 () ---------------------- AGAINST THE ORDER/JUDGMENT IN OA 89/2014 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM DATED APPELLANT(S):CLAIMANT ------------ ARUN MOHAN AGED 21 YEARS,S/O SRI.R.MOHAN, POKKATTETHU, SOUTH MANKUZHI PULLIKKANADU P.O KAYAMKULAM PIN- 670 537 BY ADVS.SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SMT.ANILA PETER SRI.SUDHEESH S. RESPONDENT(S):RESPONDENT -------------- UNION OF INDIA REP. BY THE GNERAL MANAGER, SOUTHERN RAILWAY, CHENNAI-3 R-R BY ADV. SMT.ASHA CHERIAN, SC, RAILWAYS R BY SRI.C.S.DIAS,SC, RAILWAYS THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11-112016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.N. Ravindran & Dama Seshadri Naidu, JJ.** **- - - - - - - - - - - - - - - - - - - - - -- - -** ## **M.F.A. No.77 of 2016** **- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 11[th] November, 2016** ## **JUDGMENT** ## **Dama Seshadri Naidu, J.** ## **Facts:** On 27[th] May 2014, the 19-year old appellant was travelling from Kayamkulam to Kasaragod by Parasuram Express. When he reached Thripunithura Railway Station along with his friend, he met with an accident: He sustained a tendon injury to his leg; he slipped while he was getting down. The accompanying passenger, his friend, took the appellant to V.K.M. Hospital, Thripunithura, where he had been treated as an inpatient, and later discharged. 2. Later, in about eight months, the appellant claimed compensation; it eventually resulted in the judgment, dated 3.3.2016, in O.A.(IIu)ERS/2014/0089: The Railway Claims Tribunal dismissed the appellant’s claim. Aggrieved, he has filed this Miscellaneous First Appeal. MFA 77/2016 2 ## **Submissions:** ## **Appellant’s:** 3. The learned counsel for the appellant has strenuously contended that the appellant, a candidate for the Indian Army recruitment, on that fateful day, wanted to buy a bottle of water at Thripunthura station. As he was getting down, he accidentally stuck his foot in the gap between the train and the platform, and thus he sustained a crush injury to his tendon as well as other parts of his leg. The learned counsel has also further submitted that despite the appellant’s placing abundant evidence and despite the Railways’ failing to place any countervailing evidence, the Tribunal, misreading the facts and evidence, dismissed the claim application with no justification. She has, to support her submissions, relied on **Jameela and others v. Union of India.[1]** ## **Respondents’:** 4. Per contra, the learned Standing Counsel for the Railways, with equal vehemence, has contended that the records bear out that the appellant sustained injury because of his own wrong. According to her, it has come out in the investigation that it is a self-inflicted injury. To support her submission, the learned Standing Counsel has > 1 AIR 2010 SC 3705 MFA 77/2016 3 drawn our attention to the investigation report submitted by the Divisional Railway Manager (‘DRM’) under the Railway Passengers (Manner of Investigation of Untoward Incidents) Rules, 2003 (‘the Rules’). 5. The learned Standing Counsel has contended that no person is entitled to compensation if the injury is self-inflicted. She has, in that regard, placed reliance on **Joseph v. Union of India.[2]** She has further contended that the appellant admitted before the Railway police that he had sustained the injury because of his own negligence. 6. Heard Sri Anil S. Raj, the learned counsel for the appellant, and Smt. Asha Cherian, the learned Standing Counsel for the Railways. **Issue:** 7. Indeed, the issue runs in a narrow compass. The appellant claims that he was a bona fide passenger—which he was—and that he sustained an injury on 27.5.2014, when he was trying to get off the train at Thirpunithura Railway Station. The issue that concerns us is whether the injury was self-inflicted or an accident that could not have been avoided by the appellant. > 2 2013 (4)KLT 78 MFA 77/2016 4 ## **Discussion:** 8. As has been contended by the learned Standing Counsel, the statute does not define a ‘self-inflicted injury’. Nevertheless, this court in **Joseph** (supra) has elaborately examined the lexical lineation of the expression—the ‘self-inflicted injury’. The learned Division Bench, first, has noted that many legal dictionaries like Black's Law Dictionary and Stroud's Judicial Dictionary have not defined the term. 9. **Joseph** has, therefore, taken the aid of Advanced Law Lexicon by P.Ramanatha Aiyar[3] , New English Dictionary on Historical Principles edited by Sir James Murray, LL.D[4] ., Webster's Third New International Dictionary of the English Language[5] , the ubiquitous Wikipedia, the Oxford Reference Dictionary, and Collins Cobuild Advanced Learner's English Dictionary. 10. Indeed, the expression 'self-inflicted injury' is not a word of art. It has no convoluted connotations; it plainly denotes an injury inflicted upon oneself, when one is capable of rational voluntary action. It is an injury “Inflicted by oneself or one's own hand.” A selfharm with no underlying psychological problems. The injurer, > 3 4th Edition, page 4406 > 4 Vol.VIII: Part II at page 421 > 5 Unabridged, 1969 Edition at page 2060 MFA 77/2016 5 perhaps, wants to take advantage of being injured. An element of deliberate, willful effort is present in any ‘self-inflicted injury’: The injurer and the injured are one and the same. Semantically stretched, the expression may yield to an expanded meaning—an injury sustained because of the victim’s own gross negligence or heedless recklessness, with the outcome patently predictable given one’s wanton conduct. 11. Before examining whether the appellant’s injury is selfinflicted, we may, first, ascertain whether the ‘accident’ or untoward incident occurred at all, for the Railways denies it. Specific is the Railways’ contention that if there had been any incident on 27.5.2014, either the appellant or the person accompanying him would have reported it to the authorities at the station. But for about eight months none complained. 12. True, there is no denying the fact that the appellant did not immediately lodge any complaint with the authorities, nor did he approach the Tribunal for full eight months. We, however, see no statutory embargo on a victim’s approaching the authorities belatedly if the victim could establish that the accident did occur. Here, the DRM investigated the incident and submitted a report, which the MFA 77/2016 6 Railways relied on before the Tribunal. The portion of the report reads as follows: “Findings: 1. The injured was a bona fide passenger with ticket No.548528651 Ex KYJ-KGQ. 2. The incident had happened due to carelessness, adventurist and negligent acts of the passenger during the journey in train. 3. On duty guard and SM are not having any information about the matter. Hence railway is not responsible for granting compensation to the passenger.” 13. From the above report, inescapable is the conclusion that the incident did take place. But only concerning how it took place, the report differs. The conclusion is that the appellant put his leg out ‘callously’ and in a ‘playful mood’. When perused, the record reveals no material which prompted the DRM to conclude that the appellant was callous and playful. 14. The Central Government framed the Railway Passengers (Manner of Investigation of Untoward Incidents) Rules, 2003 exercising its powers under Section 129 of the Railways Act, read with Section 22 of the General Clauses Act. The Rules prescribe the procedure of enquiry to be carried into any allegation of an untoward MFA 77/2016 7 incident. Since the accident was reported belatedly—in about eight months—the preliminary steps prescribed under the Rules may not have any bearing. The investigation completed, the police should forward the report, under Rule 10 of the Rules, to the Divisional Security Commissioner of the Railway Force, who, in turn, submits it to the DRM. On receipt of the report, the DRM may accept it or refer it back for further investigation. As seen from Rule 12 of the Rules, the DRM should send the final report along with his acceptance to the Claim Office within the jurisdiction of which the incident occurred. Thus, the final report, as per Rule 13(2) of the Rules, must be placed before the Railway Claims Tribunal along with the written statement. 15. The record reveals that the written statement and the final report were prepared on the same day. But the written statement has not even remotely referred to the investigating report. It is further indisputable that the Railways placed the final report much after the trial was concluded. 16. First, the Railways has examined no witness on its behalf. As has been rightly contended by the appellant’s counsel, the appellant had no occasion to rebut the investigation report relied on MFA 77/2016 8 by the Railways. As seen from rule 7 of the Rules, the investigation must have preceded the trial. In the alternative, we may observe that the Railways must have produced it, at least, before the appellant closed his evidence. 17. Incidentally, the written statement and the investigation report were of the same date. But, curiously, the written statement mentioned nothing about the report. So the report, at best, is post litem motem[6] . It is too well established to be contradicted that any piece of evidence that came into existence after the commencement of the judicial process cannot be relied on, especially, in favour of the party that produces it. 18. Here, the record reveals that much after the appellant’s filing the claim petition, he was said to have deposed before the Railway Police, during the investigation, that he had sustained injury because of his own fault: He was negligent while getting off the train. First, the statement was recorded, if ever, much after the appellant’s filing the claim petition. Second, the Railways never confronted the appellant with the alleged admission. ## 19. We cannot, therefore, place any reliance on the DRM’s > 6 Declarations or acts of the parties made after the litigation had begun are presumed to be made with reference to the suit then pending, and, for this reason, are not evidence in favor of the persons making them MFA 77/2016 9 investigation report, which is post litem motam and which has not been tested on the anvil of evidentiary standard known to law— cross-examination. ## 20. Further emphatic is the judicial pronouncement of the Hon’ble Supreme Court in **Jameela** . Their Lordships in paragraph 9 of the judgment have held as follows: “The manner in which the accident is sought to be reconstructed by the Railway, the deceased was standing at the open door of the train compartment from where he fell down, is called by the railway itself as negligence. Now negligence of this kind which is not very uncommon on Indian trains is not the same thing as a criminal act mentioned in clause (c) to the proviso to section 124A. A criminal act envisaged under clause (c) must have an element of malicious intent or mens rea. Standing at the open doors of the compartment of a running train may be a negligent act, even a rash act but, without anything else, it is certainly not a criminal act. Thus, the case of the railway must fail even after assuming everything in its favour.” 21. Given the definitive judicial dictum of **Jameela,** we have no manner of doubt in our mind that the appellant is entitled to compensation. We, however, add that we are unable to arrive at the quantum of compensation, which in fact requires an elaborate consideration of the facts and circumstances. It involves many imponderables such as the victim’s disability, the expenditure he had MFA 77/2016 10 incurred, loss of earnings if any, and so forth. 22. Accordingly, we deem it appropriate, first, to set aside the impugned award; and, then, to remand the matter to the Railways Claims Tribunal, Ernakulam Bench, which is to adjudicate the issue to the limited extent of fixing the quantum of compensation. For this purpose, the parties, either in person or through their counsel, shall appear before the learned Tribunal on 15.12.2016. We do so. As the accident took place about two years ago, the tribunal may expedite the process. No order on costs. ## **(P.N. Ravindran, Judge)** **(Dama Seshadri Naidu, Judge)** **kav/**