Dolly Jose and Others v Union of India (Owing Southern Railway)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR THURSDAY, THE 8[TH] DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 MFA (RCT) NO. 109 OF 2017** **OA 52/2015 OF RAILWAY CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANTS/APPLICANTS 1 TO 4 & 6** 1 DOLLY JOSE, AGED 54 YEARS, W/O LATE JOSE MANI @ JOSE P.D. 2 SOUMYA JOSE, AGED 32 YEARS, D/O LATE JOSE MANI @ JOSE P.D. 3 HIMA JOSE, AGED 26 YEARS, D/O LATE JOSE MANI @ JOSE P.D. 4 DAVID JOSE, AGED 21 YEARS, S/O LATE JOSE MANI @ JOSE P.D. 5 KATHIRNA, AGED 84 YEARS, M/O LATE JOSE MANI @ JOSE P.D. BY ADV SRI.P.V.CHANDRA MOHAN ## **RESPONDENT/RESPONDENT** UNION OF INDIA OWING SOUTHERN RAILWAY, REPRESENTED BY ITS GENERAL MANAGER, CHENNAI - 3 BY ADVS. SRI.A.DINESH RAO, SC, RAILWAYS G.MAHESWARI ## **THIS MFA (RCT) HAVING BEEN FINALLY HEARD ON 2.2.2024, THE COURT ON 08.02.2024 DELIVERED THE FOLLOWING:** _M.F.A.(RCT) 109/2017_ 2 ## **C.PRATHEEP KUMAR, J.** --------------------------------------- M.F.A.(RCT) 109 of 2017 ----------------------------Dated : 8[th] February, 2024 ## **JUDGMENT** 1. This is an appeal filed by the claimant in O.A.(II-U) 52/2015 on the file of the Railway Claims Tribunal, Ernakulam Bench by its order dated 23.12.2016 dismissing the claim petition. The appellants are the wife, three children and parents of deceased Jose Mani @ Jose P.D., who died by falling from Okha Express Train No.16338 on 24.3.2011. Admittedly Josep Mani was a bona fide passenger in the above train. He had boarded the train on 23.3.2011 at 9.00 pm from Thrissur railway station. His body was found on the railway track on 24.3.2011 at about 7.45 am near Vallikkunnu railway station. On the ill fated day, he was travelling in the train along with his two business partners. According to the appellants, during the journey, he had fallen from the train, sustained serious injuries and succumbed to the injuries. In the impugned order, the Tribunal found that it was not a case of untoward incident and accordingly the claim was dismissed. 2. According to the appellants, the deceased had accidentally fallen from the moving train and as such, it was a case of untoward incident coming under Section 123(c) of the Railways Act and hence, the Tribunal was not justified in dismissing the claim petition. On the other hand, the learned Central _M.F.A.(RCT) 109/2017_ 3 Government Counsel who appeared for Union of India, would contend that at the time of the incident, the deceased was under the influence of alcohol and as such, it is a case coming under the proviso (d) to Section 124-A of the Railways Act. Therefore, she prayed for dismissing the appeal. 3. Now the point that arise for consideration is the following :- Whether the impugned order dismissing the claim petition is liable to be interfered with, in the light of the grounds raised in the appeal. 4. Heard both sides. 5. The point :- Admittedly the deceased Jose Mani was travelling in Okha express train from Thrissur to Ahammadabad with valid ticket, along with his two business partners, when he fell down from the train, sustained injuries and succumbed to the injuries. However, there is no eye witness to the incident, as the incident occurred after midnight on 23.3.2011. His dead body was found on the railway track at about 7.45 am on 24.3.2011 near Vallikunnu railway station. 6. As per the report prepared by the DRM, Southern Railway, on 24.3.2011, a message was received that a body of a man aged 45 was found lying near the railway track. On receipt of information at about 8.30 hours on 24.3.2011, the local police namely Parappanangadi police visited the spot, conducted the inquest and produced the body to Kohikode Medical college for postmortem. As per the postmortem report, the death was due to head injury. As per the final report prepared by the police, the deceased while travelling in the train _M.F.A.(RCT) 109/2017_ 4 along with his business partners from Thrissur to Gujarath, _suspected to be fallen down from the train under the influence of alcohol._ As per the DRM report, the victim had fallen from train by his own mistake as he had consumed alcoholic drinks and therefore, the railway has no liability to pay any compensation in that respect. 7. In the postmortem report there is a finding to the effect that, _“stomach contained 600 grams rice particles in a blackish fluid medium with alcoholic smell”._ The above observation in the postmortem report that the stomach of the deceased contained rice particles with alcoholic smell, was relied upon by the local police to conclude that the deceased suspected to be fallen down from the train under the influence of alcohol. The above finding arrived at by the police is only a suspicion as there was no eye witness to the incident. The DRM report was prepared on the basis of the above final report filed by the police. In other words, in this case, there is no reliable evidence to hold that the deceased was under the influence of alcohol at the time of the accident. 8. In order to claim exemption under the proviso (d) to Section 124-A of the Railways Act, the death or injury suffered by a passenger must be due to any act committed by him in a state of intoxication or insanity. 9. Relying upon the decision of a Division Bench of this Court in **Babu v. Union of India, 2017 (3) KLT 741** , the learned counsel for the appellants would argue that mere consumption of alcohol will not bring a person within the exception intoxication. In the above decision, the Division Bench held that _M.F.A.(RCT) 109/2017_ 5 mere consumption of alcohol will not amount to intoxication unless the ingredients which constitute the exception 'intoxication' are brought out. In paragraph 6 of the above decision, the Division Bench held that :- _“The expression “intoxication” which is greater in gravity has to be understood under this perspective, rather than a mere “drunkenness”. Further, the expression “intoxication” has to be read along with the purpose of the Section as it is an exception attached to S.124A which is resting on the principle of no-fault liability in the grant of compensation to the victim who suffered injury or death due to an untoward incident as defined under the Act. So, “intoxication” must have a dominant role in the real cause of untoward incident. In other words, “intoxication” represents the state of the victim at the time of incident, due to consumption of alcohol or drugs which lead to him/her as victim to the incident. The initial burden to prove the role of intoxication in causing the accident is on the Railway/respondent.”_ ## 10.In **Oriental Insurance Company Ltd., Mattancherry v. Vineetha Nair and** **Others , 2016 (4) KHC 392,** another Division Bench of this Court also held that only because there is alcoholic smell it cannot be held that the person was under the influence of alcohol. 11. In the decision in **Jayalakshmi and Others v. Union of India, 2013 ACJ 1707,** a Division Bench of this Court held in paragraph 8 that Rules 7 to 10 of the Railway Passengers (Manner of Investigation of Untoward Incidents) Rules, 2003, clearly shows that the burden is on the local police and the officers of the force to conduct an enquiry/investigation into the cause of the incident and come to appropriate conclusion. Paragraph 8 reads as under: _M.F.A.(RCT) 109/2017_ 6 _“Rules 7 to 10 clearly show that the burden is on the local police and the officers of the force to conduct an enquiry/investigation into the cause of the incident and come to appropriate conclusion. To us it appears that the provisions clearly reveal due recognition and acceptance of the helplessness of the claimants who may be far far away from the scene/venue of the incident and consequentially incapable of adducing very compelling evidence in support of their claim. The realistic acceptance of the plight of the victims is perfectly clear from the mechanism stipulated for enquiry/investigation under the Railway Passengers (Manner of Investigation of Untoward Incidents Rules) 2003. The burden really is not placed entirely on the shoulders of the victims or claimants. But the burden is placed on the shoulders of the Railway and its officials to conduct a proper enquiry to ascertain whether claimants are really entitled to amounts or not.”_ 12.In this case, the deceased was a bona fide passenger in the Okha Express train with a valid ticket. He happened to die by falling from the above train on his journey from Thrissur to Gujarath. In the above circumstances, going by the above decisions, it is the burden of the local police as well as the Railways to conduct a proper investigation to find out the actual cause of the death of the passenger. In the instant case, based on presumptions and assumptions, the local police concluded that the deceased might have fallen from the train due to influence of alcohol. Relying upon the above finding of the local police, DRM also concluded that the victim had fallen from the train by his own mistake as he had consumed alcoholic drinks. As I have already observed above, from mere consumption of alcohol or presence of alcoholic smell in the _M.F.A.(RCT) 109/2017_ 7 contents of intestine of the deceased, it cannot be presumed or concluded that the deceased was in a state of intoxication or under the influence of alcohol. Therefore it is to be held that in this case there is no evidence to show that the deceased had fallen down from the moving train due to any act committed by him in a state of intoxication and as such, the said incident does not come within the proviso (d) to Section 124-A of the Railways Act. On the other hand, it is a clear case of accidental falling of a passenger from a train carrying passengers and as such, it is a clear case of untoward incident as defined under Section 123(c) and hence the appellants who are the dependants and legal heirs of the deceased are entitled to get the compensation provided as per the schedule of the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990. - 13.In this case, the untoward incident was on 24.3.2011. As per the schedule attached to the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, the amount of compensation payable for death as on the date of the accident, ie, on 24.3.2011, was Rs.4,00,000/-. The compensation payable was enhanced to Rs.8,00,000/- w.e.f. 1.1.2017. - 14.In the decision in **Union of India v. Rina Devi, 2018 (2) KHC 920** , the Hon'ble Supreme court has laid down the procedure for fixing the quantum of compensation payable in such cases. In paragraph 15.4 of the above decision the court held that :- - _“15.4. Accordingly, we conclude that compensation will be payable as applicable on the date of the accident with interest as may be_ _M.F.A.(RCT) 109/2017_ 8 _considered reasonable from time to time on the same pattern as in accident claim cases. If the amount so calculated is less than the amount prescribed as on the date of the award of the Tribunal, the claimant will be entitled to higher of the two amounts. This order will not affect the awards which have already become final and where limitation for challenging such awards has expired, this order will not by itself be a ground for condonation of delay. Seeming conflict in Rathi Menon (supra) and Kalandi Charan Sahoo (supra) stands explained accordingly. The 4-Judge Bench judgment in Pratap Narain SinghDeo (supra) holds the field on the subject and squarely applies to the present situation. Compensation as applicable on the date of the accident has to be given with reasonable interest and to give effect to the mandate of beneficial legislation, if compensation as provided on the date of award of the Tribunal is higher than unrevised amount with interest, the higher of the two amounts has to be given.”_ 15.In the light of the above decisions, in this case also the appellants are entitled to get a compensation of Rs.8,00,000/-. In addition to the same, they are also entitled to get interest at the rate of 6% per annum for the above amount from today till realization from the respondent. The respondent is directed to deposit the amount within a period of two months from today. ## **C.Pratheep Kumar, Judge** Mrcs/2.2.2024