Geetha P., Greeshma R., Ragesh R. and Thankam v Union of India

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR** **WEDNESDAY, THE 15[TH] DAY OF NOVEMBER 2023 / 24TH KARTHIKA, 1945 MFA (RCT) NO. 23 OF 2018** **OA 84/2013 OF RAILWAY CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANTs/APPLICANTS 1, 2, 3 AND 5 IN OA** 1 GEETHA P. AGED 47 YEARS W/O. LATE R.RAJAN, AGED 47 YEARS, PARUTHIKKATU,CHELAKKARA P.O., CHELAKKARA VILLAGE, CHELAKKARA TALUK, THRISSUR DISTRICT,PIN: 680586. 2 GREESHMA.R AGED 19 YEARS D/O.LATE R.RAJAN,RESIDING AT PARUTHIKKATU,CHELAKKARA P.O., CHELAKKARA VILLAGE, CHELAKKARA TALUK, THRISSUR DISTRICT,PIN: 680586. (WAS A MINOR AT THE TIME OF FILING THE O.A. NOW ATTAINED THE AGED OF MAJORITY). 3 RAGESH.R AGED 13 YEARS (MINOR), S/O.LATE RAJAN,REPRESENTED BY MOTHER, 1ST APPELLANT GEETHA.P.,RESIDING AT PARUTHIKKATU,CHELAKKARA P.O., CHELAKKARA VILLAGE, CHELAKKARA TALUK, THRISSUR DISTRICT,PIN: 680586. 4 THANKAM AGED 75 YEARS W/O.RAMAN NAIR, RESIDING AT PARUTHIKKATU,CHELAKKARA P.O., CHELAKKARA VILLAGE, CHELAKKARA TALUK, THRISSUR DISTRICT,PIN: 680586.(4TH APPLICANT IN THE TRIBUNAL DIED AND NOW LEGAL HEIRS ARE TO BE IMPLEADED.) BY ADVS. SRI.V.K.BALACHANDRAN SRI.S.SHYAM **RESPONDENT/RESPONDENT IN OA** _**MFA.(RCT).23/2018**_ 2 UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER,SOUTHERN RAILWAY, CHENNAI - 600003. BY ADV SRI.DINESH CHERUKAT, SC, RAILWAYS THIS MFA (RCT) HAVING BEEN FINALLY HEARD ON 9.11.2023, THE COURT ON 15.11.2023 DELIVERED THE FOLLOWING: _**MFA.(RCT).23/2018**_ 3 ## **JUDGMENT** Dated : 15[th] November, 2023 1. This appeal has been preferred under Section 23 of the Railway Claims Tribunal Act, 1987 against the judgment dated 17.11.2017 in O.A. (IIu)ERS/84/2013 on the file of the Railway Claims Tribunal, Ernakulam. 2. The appellants are the legal heirs of deceased R.Rajan who accidentally fell down from a running train, at some point of time before 2.50 am at Chullimada Kanjikode and died due to head injury sustained. They filed the original application before the Railway Claims Tribunal claiming a compensation of Rs.10,00,000/-. As per the impugned order, the Tribunal dismissed the application on the ground that the appellants failed to prove that the victim was a bonafide passenger. Aggrieved by the above order of dismissal, they preferred this appeal raising various grounds. 3. According to the appellants, the Tribunal failed to appreciate the law on facts available in the case. The investigating officer who had enquired into the matter and examined as PW1 gave evidence to the effect that the deceased had fallen down from the train and died. The finding of the _**MFA.(RCT).23/2018**_ 4 Tribunal that the appellants failed to prove that the deceased was a bonafide passenger is incorrect. Mere non-production of the ticket will not disentitle the claim for compensation. The deceased was travelling with valid ticket and the bag containing ticket was lost. Therefore, the appellants prayed for setting aside the impugned order by allowing the appeal. 4. Now the points that arise for consideration are the following : - (i) Whether Rajan died in an untoward incident as claimed by the appellants ? - (ii) Whether the impugned order of the Railway Claims Tribunal, dismissing the OA is liable to be interfered with ? 5. Heard both sides. 6. According to the appellants, Rajan was working in Coimbatore and on - 25.7.2013, while he was returning from Coimbatore to his wife's house at Thrissur in a train with valid train journey ticket, he somehow accidentally fell down from the running train before 2.50 am at Chullimada and sustained serious injuries and succumbed to the injuries. The application _**MFA.(RCT).23/2018**_ 5 filed by the appellants was dismissed by the Tribunal on the ground that the appellants failed to prove that deceased Rajan was a bonafide passenger in the train. 7. Ext.R1 DRM's report states that on 25.7.2013 at about 2.30 hours, the Night Patrolling man reported to the duty Station Master that a dead body of unknown male person was found lying by the side of Railway track between Chullimada-Kanjikode. The matter was reported to the local police, Walayar. The deceased was identified by his relatives as Rajan, son of Raman Nair. No journey ticket was found in his possession. Postmortem certificate reveals that Rajan died due to head injury. As per the final report fled by the Walayar Police, it was “an incident due to fallen down from train”, based on oral evidence of witnesses. 8. Admittedly there was no eye witness to the incident. As per the postmortem report, death was due to the injuries sustained on head and other parts of the body due to fallen down from train. As per Ext.P6 final report “from the statement of Doctor who conducted the autopsy and from post-mortem report, it is clearly revealed that it is a death due to head injury. It is concluded that the deceased Rajan had fallen down from some train and died due to head injuries. _**MFA.(RCT).23/2018**_ 6 9. Since there is no eye witness to the incident, the cause of death is to be presumed from the circumstances. From the available evidence it is revealed that the body of Rajan was found by Night Patrolling man and at that time, the dead body was lying near the railway track. The main injury sustained by him was on his head. The investigating officer, who had enquired into the incident, concluded that the victim had fallen down from some moving train. The statement of the Doctor who conducted postmortem examination to the investigating officer also is to the effect that the deceased died due to head injury and it was on the basis of the head injury that the investigating officer concluded that the deceased had fallen down from a moving train and sustained injuries. Nobody has a case that Rajan sustained injury from somewhere else and thereafter came near railway track. If the deceased was hit by a moving train while he was in the railway track, the injuries sustained by him would have been entirely different. In the above circumstances, from the available evidence it can be safely concluded that the victim had fallen down from some moving train and sustained injury on his head which resulted in his death. 10. In the decision in **Union of India v. A.Geetha and Others (2017 (3) KHC 303 [DB] )** a body of a lady was lying on the railway track. The _**MFA.(RCT).23/2018**_ 7 applicants contended that she was travelling alone in the train with valid ticket and that she lost the ticket. A Division Bench of this Court held that in such circumstances, the railway officials could have conducted a proper enquiry to get convinced about the untoward incident in the following words : **“** The pleadings of the applicants in the original application disclose that Smt.Sandhya was travelling alone in the train. Her bag containing material things including the ticket taken by her for travelling purpose was lost. Her body was found lying in the railway track. It is pertinent to note that even though disclosure of the facts is made in the original application, the respondent has not ventured to controvert those. The respondent has also no case that any enquiry in the matter was conducted by them and the contrary was revealed to them. The only objection raised was regarding the non-pulling of the chain by co-passengers and nonproduction of the ticket by the claimants. The lady being a passenger not in accompaniment with any of the original applicants, it is difficult for the latter to state specifically about the incident. The attending circumstances being so, the authorities of the Railway, being in reachable space to the place of incident, are the appropriate person to conduct an enquiry and to get convinced themselves about the untoward incident rather than the original applicants, who were in a remote place at the _**MFA.(RCT).23/2018**_ 8 relevant time. The authorities of the railway cannot take advantage of their inaction to conduct an enquiry and the incapacity of the original applicants to place on record evidence supporting their claim. In the case on hand, the attending circumstances drawn out from the pleadings of the original applicants are leaning in favour of the original applicants rather than those advanced by the respondent.“ ## 11. In **Union of India v. Leelamma (2009 (1) KLT 914)** , a Division Bench of this Court held that accidental falling of any passenger from a train carrying passengers amounts to untoward incident as defined under Section 123(c) of the Railways Act. ## 12. In the decision in **Union of India v. Prabhakaran Vijaya Kumar [2008** - **(2) KLT 700 (SC) ]** , the Hon'ble Supreme Court also held that accidental falling of a passenger from a running train carrying passengers amounts to untoward incident. 13. Therefore, from the available evidence and in the light of the above decisions, I have no hesitation to hold that the deceased Rajan fell down from a moving train, sustained injuries and succumbed to injuries and as such, it is a case of untoward incident as defined under Section 123(c) of the Railways Act. _**MFA.(RCT).23/2018**_ 9 14. As per the schedule to the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, the compensation payable for death w.e.f. - 1.1.2017 is Rs.8,00,000/-. In the instant case, the incident was on 25.7.2013 and the compensation payable then was Rs.4,00,000/-. In the decision in **Union of India v. Rina Devi [2018 (2) KHC 920]** the principle to be followed for ascertaining the quantum of compensation is narrated in paragraph 15.4 as follows :- “Accordingly, we conclude that compensation will be payable as applicable on the date of the accident with interest as may be 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...” 15. In the above decision, the Hon'ble Supreme Court awarded interest also to the applicants from the date of the accident till the date of the award at 6% and thereafter, at the rate of 9% per annum. In the decision in **Union of India v. Radha Yadav [2019 ICO 333]** , the Hon'be Supreme Court relying upon the decision in **Rina Devi** (supra) held that :- “What this Court has laid down is that the amount of _**MFA.(RCT).23/2018**_ 10 compensation payable on the date of accident with reasonable rate of interest shall first be calculated. If the amount so calculated is less than the amount prescribed as on the date of the award, the claimant would be entitled to higher of these two amounts. Therefore, if the liability had arisen before the amendment was brought in, the basic figure would be as per the Schedule as was in existence before the amendment and on such basic figure reasonable rate of interest would be calculated. If there be any difference between the amount so calculated and the amount prescribed in the Schedule as on the date of the award, the higher of two figures would be the measure of compensation. For instance, in case of a death in an accident which occurred before amendment, the basic figure would be Rs.4,00,000/-. If, after applying reasonable rate of interest, the final figure were to be less than Rs.8,00,000/-, which was brought in by way of amendment, the claimant would be entitled to Rs.8,00,000/-. If, however, the amount of original compensation with rate of interest were to exceed the sum of Rs.8,00,000/- the compensation would be in terms of figure in excess of Rs.8,00,000/-. The idea is to afford the benefit of the amendment, to the extent possible. Thus, according to us, the matter is crystal clear. The issue does not need any further clarification or elaboration.” 16. In the light of the above decisions, in this case also, the appellants are entitled to get interest at the rate of 6% per annum from the date of _**MFA.(RCT).23/2018**_ 11 incident, ie, 25.7.2013 till today, which would come to less than Rs.8,00,000/- In the above circumstances, 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. The appeal stands disposed of accordingly. Sd/- ## **C.Pratheep Kumar Judge** ## Mrcs/9.11. In the causetitle of the judgment dated 15.11.2023 in MFA(RCT) 23/2018, after the name of the 4[th] appellant, the sentence “4[th] applicant in the tribunal died and now legal heirs are to be impleaded” stands corrected as “4[th] applicant in the tribunal died and no legal are to be impleaded” as per order dated 10.03.2025 in I.A.1/2025 in MFA(RCT) 23/2018. Sd/- Deputy Registrar