Mohanan M.R and Anitha v Union of India (Railways) - MFA No. 23 of 2011

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **WEDNESDAY, THE 30TH DAY OF SEPTEMBER 2020 / 8TH ASWINA, 1942** ## **MFA.No.23 OF 2011** **AGAINST THE JUDGMENT DATED 15-09-2010 IN O.A. NO.0001/2010 OF RAILWAY CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANTS/APPELLANTS:** **1 MOHANAN.M.R,AGED 55 YEARS, S/O.S.RAMAN, MOOLEKKAROTT HOUSE, NEEROZHUKKUM KAVALA BHAGAM, KALLARA KARAYIL, KALLARA VILLAGE, KOTTAYAM.** **2 ANITHA, AGED 50 YEARS, W/O.MOHANAN M.R., MOOLEKKAROTT HOUSE, NEEROZHUKKUM KAVALA BHAGAM, KALLARA KARAYIL, KALLARA VILLAGE, KOTTAYAM.** **BY ADV. SRI.MARTIN G.THOTTAN** ## **RESPONDENT/RESPONDENT:** **UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI-600 003.** **BY SRI.P.K.RAMKUMAR, SC, RAILWAYS** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 30.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **M.F.A.No.23 of 2011** ## **:-2-:** Dated this the 30[th] day of September, 2020 J U D G M E N T The applicants in O.A. No.0001/2010 before Railway Claims Tribunal, Ernakulam Bench, are the appellants. Their claim under Section 16 of the Railway Claims Tribunal Act, 1987 (for short, 'the Act') for compensation for death of their son was dismissed on 15.09.2010 by the impugned order. The deceased was a first year Engineering student in P.A. Aziz college of Engineering in Thiruvananthapuram. It is stated that the deceased while travelling in Vanchinad express on 09.12.2008 from Piravam to Thiruvananthapuram had an accidental fall from the train near Kuruppanthara Railway Station and died. Claiming that the deceased was a bona fide passenger, compensation was sought. 2. The respondent, railway contended that the death did not arise out of an untoward incident; but it was a case of hit and run by a train, while ## **M.F.A.No.23 of 2011** ## **:-3-:** the deceased was crossing the railway track. The railway, thus, disowned the liability for payment of any compensation. 3. There are no eyewitness to the incident. 4. The father of deceased was examined as PW1 and on his side, Exts.A1 to A7 were marked. Except DRM's report, marked as Ext.R1, no evidence was adduced by the respondent. After analysing the entire evidence on record in paragraph No.8 of the impugned order, the learned Railway Tribunal concluded that the deceased was not a bona fide passenger. It was stated that the accident might have been a case of hit and run, while the deceased was on the track. 5. I heard the learned counsel for the appellants and the learned counsel for the respondent, the Railway. 6. It is true that PW1 is not an eyewitness and he has given evidence only from hearsay sources. Strictly speaking, his testimony may not satisfy the requirement of evidence in the eyes of ## **M.F.A.No.23 of 2011** ## **:-4-:** law. But going through the manner of appreciation of evidence, I do not think that the finding entered into by the learned Tribunal could be upheld. After referring to the First Information Report(FIR), the learned Tribunal observed that the incident might have been a case of hit and run. Similarly after referring to postmortem report which showed the body as lying into two pieces, an observation was made by the learned Tribunal to the effect that the accident was the sign of a hit and run case. 7. The learned counsel for the appellants submitted that this finding is totally erroneous and against the materials on record. My attention was drawn to Ext.A6, copy of final report submitted by the Investigating Officer. The investigation revealed that the deceased was travelling in the train and the death was result of an accidental fall. The learned counsel for the respondent submitted that Ext.A6 is not a legal evidence and therefore, the conclusion cannot be acted upon in **M.F.A.No.23 of 2011** ## **:-5-:** favour of the contention that the deceased was a traveller in the train. But at the same time, it has to be seen that strict rules of evidence cannot be imported when claims for compensation are decided under the provisions of the Indian Railways Act, which is a legislation enacted for the benefit of the passenger community. 8. Another reason for disallowing the claim is that ticket was not produced to prove that the deceased was travelling with a valid ticket. In this respect, the learned counsel for the appellants submitted two decisions reported in Joji C. John v. Union of India [2002(1) KLT 678] and Union of India v. Leelamma [2009(1) KLT 914]. From these decisions, it is clear that mere non-production of ticket by itself is not a ground for refusing the claim made under Section 16 of the Act. If the claimant could show that it was lost during the journey, his claim as bona fide passenger cannot be dismissed. 9. Though PW1 is not an eyewitness, his ## **M.F.A.No.23 of 2011** ## **:-6-:** evidence shows that to best of his information, his son was travelling in Vanchinad Express from Piravam to Thiruvananthapuram before he had an accidental fall at Kuruppanthara. It is the indisputable fact that the deceased Sreekuttan was studying in P.A. Aziz college of Engineering in Thiruvananthapuram and he used to come home every week end and return. Therefore, there is no reason to disbelieve PW1's version that his son on the date of occurrence left the home and was returning the college in the train as usual. The assumption of the learned Railway Tribunal that the accident was the result of a train hitting Sri. Sreekuttan on the track has no foundation. In my opinion, Ext.A4 FIR was not meticulously read and understood though it was given by the brother of the deceased based on hearsay. Ext.A6 is clear to the effect that Sreekuttan had an accidental fall from the train while he was travelling. When Ext.A6 and PW1 are taken together, it could be reasonably assumed that the deceased had accidental fall from the ## **M.F.A.No.23 of 2011** ## **:-7-:** train in the course of travel. 10. Then comes the question as to whether his travel was with a valid ticket. When there is no probability for the contention of the respondent that the accident was a case of hit and run, the normal presumption must apply that the deceased was travelling with a valid train ticket until the contrary is shown. I do not propose to conclude on the question as to whether the deceased was a bona fide passenger or not on the materials available on record now, since I am of the view that the finding of the learned Tribunal that the death arose out of an accident allegedly by hit and run of train is not supported by any materials. In my opinion, this appears to be a case which shall go back to the Tribunal over again for fresh decision as to whether the deceased was a bona fide passenger or not. In the result, this appeal is allowed setting aside the impugned order dated 15.09.2010. The learned Railway Tribunal shall decide the question ## **M.F.A.No.23 of 2011** **:-8-:** as to whether the deceased was a bona fide passenger or not after hearing the appellants and giving opportunities to parties on either side to adduce evidence and substantiate their contentions. The appearance of the parties shall be secured after giving notice to them. It is directed that this matter shall be heard and decided within a period of three months from the date of receipt of a certified copy of this judgment. All pending interlocutory applications are closed. **Sd/-** ## T.V.ANILKUMAR,JUDGE DST //True copy/ P.A.To Judge