K. Shankar v Union of India (Central Railway and Southern Railway)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **WEDNESDAY, THE 23RD DAY OF SEPTEMBER 2020 / 1ST ASWINA, 1942** ## **MFA.No.186 OF 2010** **AGAINST THE JUDGMENT IN OA (llu)ERS/2009/0133 DATED 30-062010 OF RAILWAY CLAIMS TRIBUNAL, ERNAKULAM BENCH** ## **APPELLANT/APPLICANT:** **K.SHANKAR, 73 YEARS, S/O.GOPALAN NAIR K.K.HOUSE, S R K NAGAR, OTTAPALAM, PALAKKAD DISTRICT.** **BY ADVS. SRI.V.B.NARAYANAN SRI.M.P.HARIKUMARAN PILLAI** ## **RESPONDENTS/RESPONDENTS:** **1 UNION OF INDIA OWNING CENTRAL RAILWAY, REPRESENTED BY THE GENERAL MANAGER, CENTRAL RAILWAY, MUMBAI CST 2 UNION OF INDIA OWNING SOUTHERN RAILWAY, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI 600 003.** **R1-2 BY SRI.S.ANANTHAKRISHNAN, SC, RAILWAYS** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **M.F.A.(RCT) No.186 of 2010** ## **:-2-:** ## **Dated this the 23[rd] day of September, 2020** ## **J U D G M E N T** Appellant's claim for compensation under Section 16 of the Railway Claims Tribunal Act, 1987, was dismissed by the Railway Claims Tribunal, Ernakulam Bench. Challenging the dismissal, the applicant filed this appeal. 2. Appellant is a senior citizen who boarded Kanyakumari-Bombay Jayanthi Janatha Express (6382) from Ottappalam to Nasik on 23.8.2009 at 3.50 p.m. He was sleeping on upper berth No.60 in S-7 coach and while the train reached Sholapur on 24.1.2009 at 11 p.m., he claims to have fallen down inside the train from the upper berth due to heavy jerk of the train and sustained serious injuries. It is said that he was taken to Jahangeer Hospital, Pune and was treated there for some time and is still continuing treatment in his home town. The details of injury suffered by him are referred to in the ## **M.F.A.(RCT) No.186 of 2010** ## **:-3-:** impugned judgment of the learned Tribunal. 3. The respondents denied the claim contending that the accident is not an untoward incident within the meaning of Section 123(c) of the Railways Act, 1989, (for short, 'the Act, 1989') though he was admitted to be a passenger of the train. It is contended that he was actually allotted lower berth in S-7 coach and the alleged fall from the upper berth was due to his own negligence, for which the Railway is not liable. 4. Appellant was examined by the Tribunal as PW1 and Exts.A1 to A8 were marked. No evidence was adduced on the side of the respondents. 5. After hearing both parties on either side, the learned Tribunal held that the appellant was a bona fide passenger in the train. It is also considered the dispute as to the position of the berth where the appellant was actually sleeping. Though the railway contended that the appellant was ## **M.F.A.(RCT) No.186 of 2010** ## **:-4-:** allotted lower berth but he occupied a different berth, the learned Tribunal giving benefit of doubt to appellant's case held that he was travelling as a lawful occupant of upper berth. The finding in this respect is not challenged by the railway nor any cross objection is filed in this respect also. 6. Inspite of the findings above in favour of the appellant, the claim was dismissed on an interpretation of Section 123(c) of the Railways Act that the alleged fall of the appellant inside the train is no comparison to the accidental falling within the meaning of Section 123(c) of the Act, 1989 and both represent different situations. 7. The main question that arises for consideration in this appeal is whether the interpretation canvassed by the learned Railway Claims Tribunal is correct and in accordance with the scheme of the Act, 1989. 8. In fact, the appellant was not heard in ## **M.F.A.(RCT) No.186 of 2010** ## **:-5-:** this appeal since he was not represented on the date of hearing. In the normal course, appeal would not have been disposed of on merits in the absence of the appellant but in the nature of view which I propose to take in this matter, I heard the learned counsel representing the respondents. 9. Under Section 123(2) of the Act, 1989, an untoward incident means accidental falling of any passenger from a train carrying passenger. The learned Tribunal therefore held that since the fall of the appellant from the upper berth was inside the train itself as against a fall outside the train, the definition of 'untoward incident' would not take in the alleged incident within its sweep and help the appellant claim compensation but rather would only disqualify him. 10. The learned counsel for the respondents tried to support this view contending that a passenger sustaining injury inside the train cannot ## **M.F.A.(RCT) No.186 of 2010** **:-6-:** make a claim under Section 16 of the Railway Claims Tribunal Act. In this respect, a decision reported in **Sivakala and Ors. v. Union of India & anr. (2013** **KHC 765)** was relied on. 11. After hearing the learned counsel for the respondents, I do not find anything in the cited decision taking a view that claim for compensation is limited only to travelling passengers who happen to fall outside the train. It is true that in the said decision, it was held that the definition of 'untoward incident' shall be strictly perceived and should not be expanded to take in situations which are not covered by the Scheme of the Act, under the shadow of a liberal interpretation. 12. I do not think that the passenger sustaining injury arising out of a fall inside the train is disqualified from claiming compensation as if he is excluded from the definition 'untoward incident'. The object behind enacting Section ## **M.F.A.(RCT) No.186 of 2010** **:-7-:** 123(2) may be so understood as to cover the risk of all passengers who fall inside or outside a train carrying passengers. It may not be fair to understand the definition in restrictive manner and limit the definition to travelling passengers who fall outside from the train. In this respect, a decision in **Union of India v. Prabhakaran Vijaya Kumar [2008(2) KLT 700 (SC)]** appears to be relevant. Paragraph Nos.10 and 11 of the said decision read as follows; “10. We are of the opinion that it will not legally make any difference whether the deceased was actually inside the train when she fell down or whether she was only trying to get into the train when she fell down. In our opinion in either case it amounts to an 'accidental falling of a passenger from a train carrying passengers'. Hence, it is an 'untoward incident' as defined in S.123(c) of the Railways Act. 11. No doubt, it is possible that two interpretations can be given to the expression 'accidental falling of a passenger from a train carrying passengers', the first being that it only applies when a person has actually got inside the train and thereafter falls down ## **M.F.A.(RCT) No.186 of 2010** ## **:-8-:** from the train, while the second being that it includes a situation where a person is trying to board the train and falls down while trying to do so. Since the provision for compensation in the Railways Act is a beneficial piece of legislation, in our opinion, it should receive a liberal and wider interpretation and not a narrow and technical one. Hence in our opinion the latter of the abovementioned two interpretations i.e., the one which advances the object of the statute and serves its purpose should be preferred vide Kunal Singh v. Union of India 2003(3) KLT 61(SC) = (2003)4 SCC 524 (para.9), B.D.Shetty v. CEAT Ltd. (2002)1 SCC 193 (para.12), Transport Corporation of India v. E.S.I. Corporation (2000)1 SCC 332 etc.” 13. Therefore, the view of the learned Railway Tribunal that the incident in question is not an untoward incident within the scope of Section 123(c) of the Act does not sound well. There is nothing on record to show that the incident arose out of appellant's negligence. The dismissal of claim of the appellant is not therefore in accordance with law and is liable to be set aside. **==> picture [402 x 12] intentionally omitted <==** ## **M.F.A.(RCT) No.186 of 2010** **:-9-:** compensation has to be undertaken by the Tribunal itself. The matter has therefore go back to the Tribunal. In the result, the appeal is allowed setting aside the impugned judgment dated 30.6.2010 in O.A. (llu)ERS/2009/0133 and the matter is remanded to the Tribunal for appropriate decision as to the amount of compensation in accordance with law. On receipt of records, the Tribunal will issue notice to both parties and take all earnest efforts to dispose of the matter within a month from the date of receipt of a copy of this judgment. **==> picture [51 x 11] intentionally omitted <==** ## **T.V.ANILKUMAR JUDGE** ami/