H. Badarudeen and others v Union of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS.JUSTICE K.HEMA & THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN** **TUESDAY, THE 4TH DAY OF SEPTEMBER 2012/13TH BHADRA 1934** **MFA.No. 29 of 2006 ( )** **---------------------OA.253/2002 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANTS/PETITIONERS:** - **-----------------------** **1. H.BADARUDEEN, S/O.LATE HASANGANI, MADAKAPURAYIL PURE CRESENT, P.C.MUKKU.P.O KALLAMBALAM, CHIRAYANKIL TALUK, THIRUVANANTHAPURAM-05.** **2. THAHIRA BEEVI, W/O.H.BADRUDEEN, MADAKAPURAYIL PURE CRESENT, P.C.MUKKU.P.O KALLAMBALAM, CHIRAYANKIL TALUK THIRUVANANTHAPURAM-05.** **3. RAZNA BADRUDEEN, D/O.THAHIRA BEEVI, MADAKAPURAYIL PURE CRESENT, P.C.MUKKU.P.O KALLAMBALAM, CHIRAYANKIL TALUK THIRUVANANTHAPURAM-05.** **4. RAZEEM AHMED, S/O.BADRUDEEN, (MINOR REP. BY HIS FATHER), MADAKAPURAYIL PURE CRESENT, P.C.MUKKU.P.O, KALLAMBALAM CHIRAYANKIL TALUK, THIRUVANANTHAPURAM-05.** **BY ADVS.SRI.S.CHANDRASENAN SRI.S.SAJITH** ## **RESPONDENT/RESPONDENT IN O.A:** - **--------------** **UNION OF INDIA, REP. BY THE GENERAL MANAGER, SOUTHERN RAILWAY CHENNAI.** **BY ADV. SRI.SUBAL J.PAUL, SC, RAILWAYS BY ADV. SRI.ABDUL RASHEED.K.I.,SC,RAILWAYS BY ADV. SRI.O.B.NASSEER,SC, RAILWAYS** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04-092012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.HEMA & P.S.GOPINATHAN, JJ. ------------------------------M.F.A.No.29 OF 2006 --------------------------------Dated this the 4[th] day of September, 2012** ## **J U D G M E N T ~~~~~~~~~~~** ## Hema, J. Ramzi Ahmad, aged 19 years old, was a student of Engineering. His parents and siblings (appellants 1 to 4) filed an application claiming compensation from the respondent before the Railway Tribunal ('the Tribunal', for short), inter alia, contending that he died, as a result of an accidental fall from the train and being run over by the train, while boarding the train. The incident happened while he attempted to board Trivandrum Central - Nagercoil Passenger Train No.371, at Parasala Railway Station. The claim is for an amount of Rs.4,00,000/-. 2. A statement was filed by the respondent to the claim petition. The fact that deceased died due to accidental fall from the train on 15.10.2001 is denied. As per the statement, deceased had got down from the train at Parasala Station to join his friends and he tried to board the compartment in which his friend was travelling. The train started moving and the deceased M.F.A.No.29/2006 2 fell down from the running train and succumbed to injuries. He was a student of Engineering and as a responsible matured adult, he ought to have been aware of the danger involved in getting into a running train. 3. According to respondent, deceased had chosen to invite his fate and “ _deliberately boarded a running train knowing fully well there is every chance of slipping and getting himself or even died. This deliberate, purposeful act of the deceased can only be described as a self inflicted injury and not an accidental fall as described under Section 124A of Railways Act, 1989_ .” The respondent has no duty to pay compensation for the “self inflicted injury” of the deceased and the consequent death, it is contended. 4. To prove the case, appellants examined PWs 1 and 2 and marked Exts.A1 to A6 series. No evidence was let in by respondent. The Tribunal framed as many as four issues and found thus: “ _we are of opinion that the incident in which Ramsi Ahmad, a passenger in Train No.371, burned his own fingers by his unsuccessful attempt to get into another compartment after alighting at Parasala Railway Station, when the train regained_ M.F.A.No.29/2006 3 _momentum. So, the respondent cannot be held liable for the negligent act of a passenger in conducting train journey_ .” A decision of the Andhra Pradesh High Court reported in **Union of India v. Kurukundu Balakrishnaiah Dhone** [ALT 2004(1) 100 FB] was also relied upon to hold that death was due to selfinflicted injury and hence, the claim for compensation is not sustainable. The application was accordingly, dismissed and hence, this appeal. 5. Heard both sides. Perused records. The point for consideration is 'whether the death of the deceased Ramsi Ahmad was due to self inflicted injury or on account of an accidental fall and if so, whether the appellants are entitled for compensation as prayed for'. It is clear from the impugned judgment that the application was dismissed on the short ground that this is not a case of accidental fall of a passenger from a running train as defined under Section 123(c)(2) of the Railways Act but, the death was due to the sheer negligence of the applicant and the injury is self inflicted. 6. Learned counsel for the appellant argued that the finding of the learned Tribunal is wrong, in the light of the M.F.A.No.29/2006 4 decisions of this Court and the Supreme Court. He has placed reliance upon **Union of India v. Leelamma** [2009(1)KLT 914], **Union of India v. Prabhakaran VijayaKumar** [2008(2) KLT 700(SC) and **Thazhathe Purayil Sarabi v. Union of India** [2009(4) KLT 370], in support of his argument. It is held in **Union of India v. Leelamma's** case as follows: “5. As per S.123(c)(2) of the Railways Act, 1989 “untoward incident” includes the accidental falling of any passenger from a train carrying passengers. Here the dispute mainly pertains to the aspect as to whether the deceased fell down while alighting from the train when it reached at Trichy Station or while trying to board the moving train bound to Kumbakonam. However, the fall of the deceased was accidental, is not disputed by the appellant. No case has been put forth contending that it was a suicide or an attempt to suicide, or a self inflicted injury. There was no case that the injury was sustained due to any criminal act of the deceased or any act committed by him in a state of intoxication or insanity. Therefore the appellant could not be heard to contend that the claim is not admissible because the accident is one falling under the proviso (a) to (e) of S.124A of the Railways Act, 1989. 7. In the decision reported in **Joji C.John v. Union of India** [2002(1)KLT 678] a Division Bench of this Court held M.F.A.No.29/2006 5 that, when there is an “untoward incident”, even if no negligence is proved on the part of Railway Officers, the Railway is liable to pay the compensation. Even if there is no negligence on the part of the Railway employees, it cannot be presumed that the injuries caused to the victim of the accident are self inflicted injuries so as to deny compensation as provided under Railway Accidents and Untoward Incidents (Compensation) Rules, 1990.” 8. Though the respondent took up a contention that the deceased died due to self inflicted injury, from the evidence of PW2 it is clear that the injury and death were caused due to an accidental fall. The evidence of PW2 is discussed in the impugned judgment. PW2 deposed that he was travelling in the same train and he deposed that the train stopped at Parasala Railway Station and he saw a boy looking 20 years mounting the steps of the compartment and the train moved with a shake and he fell down. Some boys wearing same uniform shouted and someone among them pulled the long chain and the train stopped after some time. In the cross examination, PW2 reiterated that the boy entered into the compartment before the train moved. M.F.A.No.29/2006 6 9. There is no reason to reject the evidence of PW2. Learned Tribunal has also not shown any specific reason to reject his evidence or to disbelieve his evidence. The evidence of PW2 clearly establishes that the deceased had an accidental fall from a moving train. There is nothing on record to suggest that the injury was on account of self infliction. In the light of the decisions cited above, it is clear that an accidental fall of a passenger from train carrying passengers will constitute untoward incident falling under Section 123(c)(2) of the Railways Act and that it cannot be termed as self inflicted injury. Therefore, this is a case where the compensation ought to have been granted in favour of the appellants. 10. Learned Tribunal placed reliance upon the decision of the Andhra Pradesh High Court reported in **Union of India v. Kurukundu Balakrishnaiah Dhone** [ALT 2004(1) 100 FB] in which it is held that death occasioned to a person travelling on a train by his negligence or carelessness in disregard of the requisite standard of care which is reasonably expected is the result of self inflicted injury and not an untoward incident. The said dictum cannot be followed in the light of pronouncements of M.F.A.No.29/2006 7 this Court as well as the Supreme Court to the effect that an accidental fall from a train can be said to be an untoward incident falling under Section 123(c)(2) of the Railways Act, 1989. Therefore, the dismissal of the application on the ground that the deceased died due to self inflicted injury is not sustainable. 11. Admittedly, the amount payable in a case of death due to accidental fall from a train is Rs.4,00,000/- under the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990. Therefore, the appellants are entitled to get Rs.4,00,000/- as compensation from the respondent. In this context, learned counsel for the appellants submitted that the Supreme Court in **Thazhathe Purayil Sarabi v. Union of India** [2009(4) KLT 370] held that interest is payable from the date of filing of the claim petition. 12. On going through the above decision, it is clear that interest is payable from the date of claim petition till realisation. Learned counsel for respondent submitted that the Supreme Court has awarded interest only at 6% per annum from the date of application till the date of award and hence, such rate would be sufficient. Learned counsel for the appellants also conceded that 6% interest may be granted from date of incident. M.F.A.No.29/2006 8 13. On consideration of the facts and circumstances, we find that 6% interest per annum on the amount of compensation can be awarded from the date of application till date of award and thereafter, at 9% per annum till the date of payment of the amount. (The Supreme Court in the above case also awarded 9% interest from the date of award till the actual payment). It is pointed out by the learned counsel for the respondent that siblings of the deceased who are appellants 3 and 4 are not entitled for any compensation because, they do not come under the definition of dependents in Section 123 of the Railways Act. It is also pointed out that the learned Tribunal found that only appellants 1 and 2 who are the parents of the deceased are the dependents of the deceased, since he died unmarried. 14. On a reading of Section 123 of the Railways Act it is clear that dependents of a deceased passenger if he is unmarried is his parents. His siblings are not included in the definition of dependents. Therefore, as rightly pointed out by the learned counsel for the respondent, appellants 1 and 2 alone are liable to be compensated and they alone will be entitled for compensation. 9 M.F.A.No.29/2006 15. In the result, the following order is passed: (1) The order of dismissal of the application is set aside. (2) The respondent is directed to pay Rs.4,00,000/- as compensation to the appellants 1 and 2 with interest at 6% per annum from the date of application till date of award and at 9% interest from the date of award till realisation. (3) The amount will be paid within a period of two months and in default of such payment, the respondent shall pay interest at the rate of 12% per annum, till realisation. This appeal is allowed with costs. ## **(K.HEMA, JUDGE)** ## **(P.S.GOPINATHAN, JUDGE)** **ps**