Girija (Appellant) v Union of India (1st Respondent) and Balan S/o Krishnan (2nd Respondent)

**1** MFA(RCT) No.96 of 2014 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **MONDAY, THE 26[TH] DAY OF FEBRUARY 2024 / 7TH PHALGUNA, 1945 MFA (RCT) NO. 96 OF 2014** **AGAINST THE JUDGMENT DATED 12.08.2014 IN O.A.(llu)ERS/2013/0082 OF** **RAILWAY CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/APPLICANT IN O.A:** **GIRIJA AGED 53 YEARS W/O BALAN, HOUSE NO.84, PEEDIKAKUNIYIL HOUSE, CHELIYA PO, CHENGOTTUKAVU VILLAGE, QUILANDY TALUK, KOZHIKODE - 673 306.** **BY ADVS. SRI.V.K.BALACHANDRAN SMT.S.LEKSHMI RAJAN** ## **RESPONDENTS/RESPONDENTS IN O.A.:** **1 UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI - 3. *2 BALAN S/O KRISHNAN, MALAYILTHAZHE VEEDU, THUVAKKODE PO, THEMANACHERRY VILLAGE, QUILANDY TALUK, KOZHIKODE - 673 304. [DIED] [Death of 2[nd] respondent is recorded as per order dated 26.02.2024 in memo dated 15.12.2023 in MFA (RCT) 96/2014] BY ADVS. SRI KRISHNA T C FOR R1 SMT.REZIYA.P.A., SC RAILWAYS FOR R1 SRI.S.ANANTHAKRISHNAN, SC, RAILWAYS FOR R1** ## **THIS MFA (RCT) HAVING BEEN FINALLY HEARD ON 15.02.2024, THE COURT ON 26.02.2024 DELIVERED THE FOLLOWING:** **2** MFA(RCT) No.96 of 2014 ## **T.R.RAVI.J** **------------------------------------------------------MFA(RCT) No.96 of 2014** **-------------------------------------------------------Dated this the 26th day of February, 2024** ## **JUDGMENT** Heard Sri.V.K.Balachandran on behalf of the appellant and Sri.T.C.Krishna on behalf of the 1st respondent. 2. The appellant’s son, Sri P.K. Biju, who was stated to have been working as a barber, died, and the cause of death is stated to be accidental falling from Chennai-Mangalapuram Mail. The claim preferred by the appellant has been rejected by the Railway Claims Tribunal, Ernakulam, and hence the appeal. According to the appellant, her son was travelling by train on 19.07.2013, from Quilandy to Vadakara where his barber shop is situated. At about 8.25 am, when the train reached Palakkulam, he was stated to have accidentally fallen down from the train and sustained serious injuries. He was taken to Kozhikode Medical College Hospital by the local people, and he succumbed to the injuries at about 11.45 hours on 28.07.2013. The claim was preferred contending that it is an untoward incident entitling the claimant for compensation. 3. The 1st respondent filed a reply statement contending **3** MFA(RCT) No.96 of 2014 that if the deceased had fallen down from the train, the incident would have been reported by the co-passengers. It is further stated that nobody had pulled the chain or reported the incident and hence it will not come under Section 123 (c)(2) of the Railways Act. The 1st respondent also denied that the deceased was traveling with a valid ticket and contended that they are not liable to pay any compensation to the appellant. 4. The appellant did not adduce any oral evidence. Exts.A1 to A7 were marked on the side of the appellant. The 1st respondent also did not adduce any oral evidence and Ext.R1 - DRM’s report was produced on the side of the respondent. Ext.A1 is the FIR, Ext.A2 is the inquest report, Ext.A3 is the postmortem report and Ext.A4 is the final report filed before the Court. Ext.A5 is the death certificate. Exts.A6 is the medical records of the Medical College Hospital, Kozhikode, and Ext.A7 is the family membership certificate. The Tribunal relied on the decision of the Delhi High Court in **Shahajad and Others v. Union of India [1 (2014) ACC 397** _**]**_ and held that the onus to prove that the deceased was a bona fide passenger in the train is on the applicant. After noting the judgment of the Delhi High Court, the Tribunal found that there is no material or evidence on record to arrive at a conclusion that the victim was a MFA(RCT) No.96 of 2014 **4** _bona fide_ passenger on the train. The Tribunal observed that the claimant did not examine anyone to show that the victim had boarded the train or any person who had seen the victim traveling in the train. A presumption is drawn that, the fact that the incident occurred near the place of residence of the victim would suggest trespassing. The Tribunal also found that the injuries noted in Ext.A4 are possible even if a person is hit by a person while walking through the railway track or if he had trespassed into the railway track. 5. The counsel for the appellant contended that the reliance placed by the Tribunal on the decision of the Delhi High Court was not warranted in view of the law that has been settled by a series of decisions. In **Union of India v. Prabakaran Vijaya Kumar and Others [ 2008 (2) KLT 700],** the Hon’ble Supreme Court held that if the word used in a beneficial or welfare Statute is capable of two constructions, the one which is more in consonance with the object of the Act and for the benefit of the person for whom the Act was made, should be preferred. The said decision also arose from a case where a person had fallen from a train. The Court was called upon to decide whether the incident that happened was an untoward incident as defined in Section 123(c) of the Railways Act. On MFA(RCT) No.96 of 2014 **5** facts, it was a case where the traveller was holding a second class season ticket and an identity card issued by the Southern Railway. In **Union of India v. Leelamma [2009 (1) KLT 914]** _**,**_ a Division Bench of this Court considered the case of a person who fell down while trying to board a train. This Court held that it is an untoward incident and even when there is no negligence on the part of the Railway or its officers, the Railway is liable to pay the compensation. The Court held that the injuries caused to the victim of the accident were not selfinflicted injuries so as to deny compensation. This Court held that the burden is on the Railway to prove that the claimant is not a _bona fide_ passenger and that merely because the ticket was lost during the accident, the passenger cannot be labelled as not a _bona fide_ passenger. In **Sunitha C. and Others v. Union of India [2016 (3) KLT 791]** _**,**_ another Division Bench of this Court considered the case of a person who had fallen from a train, was found dead by the Station Master, and the incident reported to the local police. That was a case where the deceased was having a ticket purchased for the journey from Kayamkulam to Tirur. The Court considered whether the incident comes within untoward incidents under Section 124A and held in the affirmative. In **Union of India v. A. Geetha and Others** **6** MFA(RCT) No.96 of 2014 **[2017 (3) KHC 303 (DB)]** _**,**_ a Division Bench of this Court considered the case of a lady passenger who was travelling alone on the train, whose body was found near the railway gate. The Railways had resisted the claim, stating that the claimants had failed to establish that she had fallen from the train. This Court held that the burden is on the Railways to conduct an appropriate enquiry regarding the cause of the incident and that the Railways cannot take advantage of the incapacity of the applicants to place on record evidence supporting their claim. The Court held that the mere fact that co-passengers did not pull the chain is not fatal and observed that it is difficult for the claimants to state specifically about the incident since they had not accompanied the deceased. 6. The legal position was to a certain extent set at rest by the judgment in **Union of India v. Rinadevi [2018 (2) KLT 1060** ]. In the said case, the claimant had contended that the deceased had purchased a ticket for second class travel and had fell down from the train due to the rush of passengers and died on the spot. The Tribunal had dismissed the claim on the ground that it is not a case of ‘untoward incident’ but a case of ‘run over’. The High Court set aside the order of the Tribunal and the Union of India preferred an appeal before the Hon'ble MFA(RCT) No.96 of 2014 **7** Supreme Court. It was contended that mere presence of a body in the precincts of the railways was not sufficient to presume that the deceased was a _bona fide_ passenger, particularly when no ticket was found from the deceased. The Court considered the various conflicting views of different High Courts and concluded that though the mere presence of a body on the railway premises will not be conclusive to hold that the injured or deceased was a _bona fide_ passenger, the mere absence of a ticket with such injured or deceased will not negative the claim that he was a _bona fide_ passenger. The Court held that there is an initial burden on the claimant which can be discharged by filing an affidavit of the relevant facts and the burden will then shift on to the railways and the issue can be decided on the facts shown or the attending circumstances. The Court also held that it has to be dealt with on a case to case basis based on the facts proved. 7. Coming to the facts of this case, the DRM report has been produced as Ext.R1. The report would show that based on information given by a person named Jayarajan on 28.07.2013, the local police, Quilandy had registered a case vide Crime No.790/2013 under Section 174 of the Code of Criminal Procedure. The complainant had reported that on 19.07.2013, **8** MFA(RCT) No.96 of 2014 his cousin Biju (deceased), while traveling from Quilandy to Vadakara by Chennai-Mangalapuram Express, fell down from the train at about 8.30 hours at a place called Palakkulam, that he was rushed to Government Hospital, Quilandy by a Railway employee named Madhavan and the local public and that the victim was later referred to Medical College Hospital, Calicut. It was also stated that the victim succumbed to the injuries on 28.07.2013 while under treatment at MCH, Calicut. According to the inquest, nothing was recovered from the body, as the deceased died while in treatment. It is stated that the relatives and neighbours had stated to the police that the deceased had fallen from the Chennai–Mangalapuram train at about 8.30 hours on 19.07.2013. The statement of Sri Madhavan, Keyman, Quilandy UP Line, Staff No.17/363 was recorded. According to Sri Madhavan, who is a Railway employee, he was on duty on 19.07.2013 from 7 hours to 17 hours between KM/688/300 to 695/00. He stated that on that day morning, when the ChennaiMangalapuram train was passing, KM/692/600-700, he was standing on the left side of the track. He stated that after the train passed, he noticed one person lying between the up and down track and that on reaching near him, it was noticed that he was alive. He further states that he called the local people, who **9** MFA(RCT) No.96 of 2014 in turn took the victim to the hospital, and he continued his duty thereafter. It is thus evident that a Railway employee himself had seen the deceased lying between the up and down track after the Chennai–Mangalapuram train passed by. The above evidence is sufficient to hold that the deceased had fallen from the train. Once the falling from the train has been established, the only other question that is relevant is whether the deceased was a _bona fide_ passenger. The report also says that from enquiry, it is learned that the deceased travelled by Chennai– Mangalapuram train on 19.07.2013 and fell from the train. It is also stated that the incident was not noticed by the guard of the train, though the incident took place in broad daylight. The report concluded that the journey ticket was not available on the victim to prove that the victim was a _bona fide_ passenger. It can thus be seen from the report that the only conclusion drawn in the report is that since the ticket was not available, he cannot be treated as a _bona fide_ passenger. The statement of Sri Madhavan had been recorded by the Assistant Sub Inspector of the Railway Protection Force, Kozhikode. 8. The counsel for the respondents submitted that even though a conclusion cannot be drawn based on the absence of a ticket, the claimant had not discharged her burden to prove that **10** MFA(RCT) No.96 of 2014 the deceased was a _bona fide_ passenger. It is contended that as held in _**Rina Devi (supra)**_ , the claimant should have at least filed an affidavit regarding the travel of the claimant stating that he had left the house to go to his barber shop at Vadakara. It is hence stated that in the absence of such an affidavit, Railway cannot be expected to prove the negative. The above contention cannot be countenanced based on the available records. The claim petition clearly asserts that the incident happened when the deceased was travelling in the Chennai-Mangalapuram mail from Quilandy to Vadakara to go to his Barber shop at Vadakara. The application has been verified by the claimant on oath. The claimant has produced all possible records along with the claim statement. The Police had recorded statements of several persons, who have all suggested that the death occurred due to falling from the train. The local Panchayat members had also given statements to that effect. The claimant had filed an affidavit before the Claims Tribunal wherein it is stated that her son was holding a general compartment ticket for the journey from Quilandy to Vadakara, which had been lost at the time of the accident, and that she was not in a position to produce the ticket. She also requested that the production of the ticket be dispensed with. The affidavit also states that she is not in a **11** MFA(RCT) No.96 of 2014 position to file the original of the death certificate since it was required for completing other formalities and is undertaking to produce the original at the time of evidence. I am of the view that the said affidavit is sufficient to discharge the initial burden on the part of the claimant. The respondents have not chosen to let in any contra evidence. In such circumstances, the appellant is entitled to succeed in this appeal. 9. Coming to the question of compensation, the compensation payable under the Act at the time of the incident was Rs.4 lakhs. The amount had been enhanced to Rs.8 lakhs by an amendment. In _**Rina Devi (supra),**_ the Hon’ble Supreme Court considered cases where the amendment has come into force pending consideration of a claim. The Hon’ble Supreme Court concluded that compensation will be payable as was 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. It was further held that if the amount so calculated is less than the amount prescribed on the date of the award of the Tribunal, the claimant will be entitled to the higher of the two amounts. In the case on hand, the incident happened on 19.07.2013. We are now in 2024. Even if 9% interest is granted on the sum of Rs.4 lakhs, the total amount payable **12** MFA(RCT) No.96 of 2014 would be less than Rs.8 lakhs, which is the compensation payable now. Going by the decision in _**Rina Devi (supra)**_ , the claimant will hence be entitled to compensation of Rs.8 lakhs. 10. In the above circumstances, appeal is allowed. The judgment dated 12.08.2014 of the Claims Tribunal is set aside. The claim petition is allowed directing the respondents to pay compensation of a sum of Rs.8,00,000/- (Rupees Eight Lakhs only) within one month from the date of receipt of a certified copy of this judgment. If the payment is not made within the aforesaid time, the same shall be paid along with interest at the rate of 9% per annum from the date of this judgment till the date of payment. The parties shall bear their respective costs. Sd/- **T.R.RAVI** **JUDGE** sn