Jayasree C., Shreya Raj, Narayanan Nair and Kamalakshi v. Union of India

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 MFA.No. 87 of 2011() -------------------AGAINST THE ORDER DATED 26/11/2010 IN O.A.NO.(IIV)/ERS/2010/0013 IN OA.11V/2010 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM .................... ## APPELLANTS: APPLICANTS ------------------------------------------ 1. JAYASREE.C, AGED 29 YEARS, W/O.LATE PUSHPARAJAN. 2. SHREYA RAJ, AGED 4 YEARS, S/O.LATE PUSHPARAJAN. 3. NARAYANAN NAIR, AGED 65 YEARS, S/O.LATE KANNAN NAIR, (FATHER OF THE DECEASED). 4. KAMALAKSHI, AGED 55 YEARS, W/O. NARAYANAN NAIR, (MOTHER OF THE DECEASED). ALL OF THEM ARE RESIDING AT 89, KOOKAL VEEDU, MARUTHAM DESOM, BALAL VILLAGE, CHULLI PO,KASARGODE DT.,KERALA, (APPLICANT NO,2, MINOR IS REP. BY HER GUARDIAN AND MOTHER, IST APPLICANT). BY ADV. SRI.SONY VINCENT ## RESPONDENT/RESPONDENT: ----------------------------------------- UNION OF INDIA, REP. BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI-600 003. ADV.SHRI.C.S.DIAS FOR R1 ADV. SRI.JOHN MATHEW,SC, RAILWAYS SRI.P.PARAMESWARAN NAIR,ASG OF INDIA FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K. M. JOSEPH & M.L.JOSEPH FRANCIS JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** M.F.A.(W.C.Act) No. 87 of 2011 **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 18[th] day of October, 2011 ## **JUDGMENT** ## K.M. Joseph J., The appellants are the claimants in a proceeding before the Railway Claims Tribunal, Ernakulam Bench. They claimed compensation in a sum of Rs.4 lakhs. The first appellant is the wife, 2[nd] appellant is the daughter and 3[rd] and 4[th] appellants are the parents of the deceased Pushparajan. 2. According to the appellants/claimants, on 2.12.2009 after purchasing a II class ticket from Kottayam Railway Station to travel to Kanhangad, deceased Sri. Pushparajan entered the Malabar Express. When the train reached near Ollur station on 3.12.2009, he accidentally fell down from the train and succumbed to his M.F.A.(W.C.Act) No. 87 of 2011 **==> picture [14 x 9] intentionally omitted <==** injuries. The claimants claimed that the deceased was a bonafide passenger with a valid ticket, but the ticket has been lost. The respondent denied that the deceased was involved in an untoward incident. They claim that enquiries reveal that some public had informed the gate keeper at LC/26 that the body of a male aged about 35 years was lying near the track at KL 39/500 Ollur yard. The respondent alleged that the deceased may have been hit by a train while he was trespassing on the railway track, which is not an untoward incident as per Section 123 of the Railway Act. They deny the case that the deceased was a bonafide passenger with a valid ticket. After framing five issues and after considering the matter, the Railway Tribunal has dismissed the application of the claimants. 3. It was found by the Tribunal that the appellants have not clearly proved that the deceased was a bonafide passenger. It is found that no ticket was recovered and there is no witness to his purchasing a ticket. However, it is noted that the said issue as to whether the deceased was a bonafide passenger will be decided M.F.A.(W.C.Act) No. 87 of 2011 **==> picture [14 x 9] intentionally omitted <==** after a detailed discussion on 2[nd] issue as to whether the appellants proved that the deceased met with an accident under Section 123(c) of the Railway Act. 4. Then coming to the 2[nd] issue, the Tribunal proceeded to hold that the applicants have clearly not been able to prove anything and there are no circumstantial evidence to even back their claim. It is inter-alia found under the said issue that there are no eye witnesses to the deceased getting into the train or for his fall. It is found that PW1 who is the first appellant has stated that her husband had spoken to her over phone and said that he had purchased a ticket and coming home by Malabar Express. It is found that there is no confirmation for such conversation and no other evidence. It is further noted that as per the F.I.R. given by the Station Master, he only says, “as per intimation No. CLR/311 run over dated 3.12.09 regarding the body of an unknown male aged about 35 years found on the Railway track near Ollur Station on 3.12.2009 at 6. a.m. being hit by the train...”. The body was found near the track at 6.00 a.m. and the initial reason cited was hit by a M.F.A.(W.C.Act) No. 87 of 2011 **==> picture [14 x 9] intentionally omitted <==** train and not fallen from the train. The inquest report concludes by saying that the dead body of a male aged about 35 years and fallen from some train. The Tribunal found that this conclusion is based only on assumption as there are no eye witnesses. Even in the statement of Johnson in Inquest, it is stated that he presumes the deceased fell from a train, it is stated. The information given in SM's memo is also, according to the Tribunal, not enough to pinpoint the train or cause of accident. It is found that Malabar Expresses passes through the site at around 1.00 a.m. At least six trains in the same direction pass through the same site from 1.00 a.m. to 6.00 a.m. It is found that as such the body could have fallen or been hit down by any train. 5. We heard learned counsel for the appellants and the learned counsel for the respondent. 6. Learned counsel for the appellants would submit that this is a case where there is documentary evidence available to show that the deceased had gone to Kottayam for giving evidence as a witness in a judicial proceeding before J.F.C.M. at Ettumanoor. M.F.A.(W.C.Act) No. 87 of 2011 **==> picture [14 x 9] intentionally omitted <==** The deceased belongs to Kanhangad. After giving deposition in the Court at Ettumanoor, the learned counsel for the appellants points out that the deceased had boarded the Malabar Express from Kottayam on 2.12.2009 and while so when the train reached Ollur he accidentally fell down. Therefore the deceased was a passenger in the train, as contended by the appellants, stands proved with documentary evidence. As far as the question of train ticket is concerned, he would submit that the ticket would have been lost and he would rely on the decision of this Court reported in **Union of India v. Leelamma** (2009(1) KLT 914), wherein this Court had held that the burden is on the Railway to prove that the claimant is not ' a bona fide passenger' and further held that merely because the ticket is lost during the accident, the passenger cannot be labelled as 'not a bona fide passenger'. The learned counsel for the appellants further drew our attention to another judgment of this Court reported in **Jayalakshmi and others v. Union of India** (2011(2) ILR 869). He points out that this Court had held that under Railway Passengers (Manner of Investigation of Untoward M.F.A.(W.C.Act) No. 87 of 2011 **==> picture [14 x 9] intentionally omitted <==** Incidents) Rule, 2003, the burden is not placed entirely on the shoulders of the victims or claimants. It is further held that the burden is placed on the shoulders of the Railway and its officials to conduct a proper enquiry to ascertain whether the claimants are really entitled to amounts or not. 7. Per contra, learned counsel for the respondent supported the order and referred to the DRM's report. Learned counsel for the appellants would point out that the report itself would show that the deceased had fallen from the train. 8. We must notice certain features in this case, which are borne out by the documentary evidence. Ext.A13 is the order sheet in Crime No.200 of 2008 of Ettumanoor Police Station under Sections 279 and 337 of IPC, which would show that on 2.12.2009 CW1 was examined as PW2. Ext.A15 would show that PW2 is deceased Pushparajan and that he had given deposition in S.T. No.1867 of 2008. Ext.A17 is the F.I.R. of the said case and Ext.A18 is the final report. The case of the appellants is that the deceased Pushparajan had suffered injuries in a motor accident. He M.F.A.(W.C.Act) No. 87 of 2011 **==> picture [14 x 9] intentionally omitted <==** was a driver by profession and in connection with the criminal case arising out of the said incident the deceased had travelled to Kottayam to give evidence. He gave evidence as PW2. 9. We would agree with the learned counsel for the appellants that it is clearly probable that the deceased who belonged to Kanhangad was in Ettumanoor at Kottayam District on 2.12.2009 and gave deposition in connection with the said case. If he was in Kottayam on 2.12.2009 and if his body is found in early morning on 3.12.2009 at Ollur, it is again very probable that as suggested by the appellants, the deceased had boarded Malabar Express bound for Kanhangad. There is evidence of PW2, who is the brother of the deceased, that the deceased was residing in Kasarkode. PW2 would say that the deceased has been at Kasarkode for six months prior to the accident and that the deceased was a driver of the bus. He was earlier working at Ettumanoor but later he was working at Kasarkode, says PW2. PW1, first appellant would also state in her deposition that on 2.12.2009 in the evening her husband had rang up and said that he M.F.A.(W.C.Act) No. 87 of 2011 **==> picture [14 x 9] intentionally omitted <==** had purchased a ticket and was coming home by Malabar Express and that he had spoken to her over the mobile phone. The mobile phone was lost and only the Sim card was recovered. No doubt she had stated that the affidavit is based entirely on hearsay evidence. 10. In the cross-examination she had further stated that the deceased went to Ettumanoor in connection with the motor vehicle accident where his vehicle was hit by another vehicle. We notice that no oral evidence is adduced on the part of the respondent. The only evidence produced is the DRM's report and the DRM's report would show that the deceased had fallen from the train. If that be so, we can safely arrive at the conclusion that the deceased was travelling on the train as a passenger. As far as the train ticket is concerned, we would follow the judgment of this Court wherein it was held that the burden is on the Railway to prove that the deceased is not a bona fide passenger and merely because the ticket is lost during the accident, the passenger cannot be labelled as not a bonafide passenger. When an accident takes place it is possible that the ticket may not be recovered and it may be lost, but that could M.F.A.(W.C.Act) No. 87 of 2011 **==> picture [14 x 9] intentionally omitted <==** not mean that the deceased was not a bonafide passenger with a valid ticket. In the light of this reasoning, the appellants have established the case that the deceased was a bonafide passenger and there was an untoward incident under Section 123 of the Railways Act. There is no case for the Railways that he had committed suicide. We can safely rule out that he was hit by a train. We would think that it is much more probable that the deceased had fallen from the train while he was travelling in the train bound for Kasarkode. 11. In these circumstances, the impugned order is to be set aside and the appeal is to be allowed. We see no reason in not awarding a sum of Rs.4,00,000/- in this case, as compensation. 12. Accordingly the Appeal is allowed and the impugned order will stand set aside. We direct the respondent to pay a sum of Rs.4,00,000/-(Rs.Four lakhs only) as compensation to the appellants. Out of the amount of Rs.4,00,000/-, one-third shall be payable to appellants 3 and 4 and two-third of the amount shall be payable to the appellants 1 and 2. M.F.A.(W.C.Act) No. 87 of 2011 **==> picture [20 x 9] intentionally omitted <==** 13. We further direct that the amount shall bear interest at the rate of 9% per annum from the date of application till the date of payment. **Sd/-** **K.M.JOSEPH, (JUDGE)** **Sd/M. L. JOSEPH FRANCIS, (JUDGE)** dl/ // TRUE COPY// PA TO JUDGE