Pathumma (W/o Assanar) and Safia (D/o Assanar) v Union of India (Railways) — OA 171/2009 (MFA No. 120 of 2010), High Court of Kerala at Ernakulam

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA & THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN TUESDAY, THE 25TH DAY OF SEPTEMBER 2012/3RD ASWINA 1934 MFA.No. 120 of 2010 ----------------------JUDGMENT IN OA.171/2009 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM ............... APPELLANTS/APPLICANTS 2 AND 3 IN O.A.: 1. PATHUMMA, W/O.ASSANAR, PUTHUVEETTIL HOUSE, ATTOOR.P.O, PANJAL, THALAPPILLY TALUK, THRISSUR, DISTRICT, KERALA. 2. SAFIA,D/O.ASSANAR, DO. DO. DO. BY ADV. SRI.V.K.BALACHANDRAN RESPONDENTS/RESPONDENT IN O.A: UNION OF INDIA,OWNING SOUTHERN RAILWAY, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHANNAI. BY ADV. SRI.N.B.SUNIL NATH,SC, RAILWAYS THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 25-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.Hema & P.S.Gopinathan, JJ. ---------------------------------- M.F.A.No.120 of 2010 ---------------------------------Dated this the 25[th] day of September, 2012 ## **JUDGMENT** Hema, J. On 09.12.2008, one Abu Thahir is alleged to have met with an accident while he was travelling in a train on a valid ticket from Kozhikode to Shornur with his friends. He fell down from a running train near Kodumunda Railway Station at about 8.30 p.m. and sustained grievous injuries to the left hand and neck and succumbed to the injuries sustained. In respect of the incident, final report was filed by the police. His parents filed an application before the Railway Claims Tribunal ('the Tribunal' for short) claiming compensation under Section 16 of the Railway Claims Tribunal Act, 1987. 2. A statement was filed by respondent before the Tribunal stating that deceased did not die due to any untoward incident. According to respondent, enquiries revealed that a boy was run over and killed by Train no.616 (passenger) at the Pattambi end of Kodumunda Station platform. The inquest report MFA 120/2010 2 discloses that deceased was travelling by standing dangerously near the doorway of a speeding train and was speaking on mobile phone at the time of the alleged incident. He exposed himself to the incident and it cannot be termed as an untoward incident and hence petition is liable to be dismissed on the ground of “self inflicted injury” under Section 124A(b) of the Railways Act ('the Act' for short). Respondent also denied that deceased travelled with valid travelling authority. 3. To prove the case of the applicants, PWs 1 and 2 were examined and Exts.A1 to A10 were marked. On the side of the respondent, RW1 was examined. On consideration of the entire evidence, learned Tribunal found that PW2, who is an eye witness to the occurrence, deposed that six tickets were taken, whereas only two tickets were produced (Ext.A3). In the affidavit filed by him, it is stated by him that “he” purchased the tickets, but in evidence, he stated that “we” purchased the tickets. Therefore, the deceased passenger was held to be not a bona fide passenger. MFA 120/2010 3 4. Heard both sides. Perused the records. Points for consideration are (1) whether deceased Abu Thahir had a valid ticket to travel in the train at the time of the alleged incident? (2) whether death occurred due to the untoward incident as alleged? and (3) whether impugned judgment is sustainable? 5. As per the impugned judgment, one of the reasons stated for dismissing the petition is that deceased was not a bona fide passenger, who was having a valid ticket. Another reason shown is that there is contradiction in the evidence of PW2 in respect of the number of tickets purchased. PW2 deposed that six persons were travelling in the train and all of them had purchased the tickets, but only two tickets were produced. Thus, non-production of more tickets was found to be a reason to hold that deceased had no valid ticket. 6. The question to be considered is whether deceased was travelling with a valid ticket at the time of the alleged accident. Hence, non-production of tickets purchased for the journey of copassengers cannot be made a ground to hold that deceased was not a bona fide passenger. Any way, the number of tickets is not MFA 120/2010 4 the criterion to decide whether deceased was a bona fide passenger or not. 7. In this context, it is relevant to note that though the respondent disputed that deceased was a bona fide passenger, no evidence was adduced from the side of the respondent to show that he was not a bona fide passenger. Evidence of PW2 was not discredited in cross-examination also. Therefore, the finding that deceased was not a bona fide passenger and he was not having a valid ticket cannot be sustained. 8. The fact that deceased sustained injury by falling from a running train on the crucial day is not disputed. In fact, the details shown in second paragraph of the written statement would make it appear that respondent did not specifically dispute that deceased sustained injuries, when he fell down from a running train. A case was registered in connection with the incident and FIR, inquest report, postmortem certificate and copy of final report are all marked in this case. As per the final report, deceased fell down from a running train and he died due to the injuries sustained in the accident. MFA 120/2010 5 9. Going by Sections 123 and 124A of the Act, it is clear that if death is caused to a passenger in a train as a result of “untoward incident”, compensation is to be paid to the dependent of the deceased by the Railway Administration. The question is whether death was due to an “untoward incident” as defined under Section 123 of the Act. According to respondent, deceased sustained a “self inflicted injury” as he was negligent. The incident happened while he was standing at the doorway and talking over mobile phone. 10. On a reading of the decision reported in **Union of India v. Leelamma** (2009 (1) KLT 914), it is clear that when an accident happens and a passenger falls down from a running train and death is caused to him, it cannot be said that it is a case of “self inflicted injury”. There is no case for the respondent that injury was sustained due to any criminal act of the deceased or any act committed by him in the state of intoxication or insanity. This Court, in the decision cited above, held that in such circumstances, Railways cannot be heard to contend that the claim is not admissible because the accident is one falling under MFA 120/2010 6 provisos (a) to (e) of Section 124A of the Act. 11. The fall was accidental and this fact is not specifically denied in the statement filed by the respondent. But a reference is made to the inquest report wherein, it is stated that he fell down from the train, while he was standing near the doorway and speaking over mobile phone. Therefore, the contention that death was due to “self inflicted injury”, cannot be accepted. 12. Evidence of PW2 reveals that he was an eye witness to the occurrence. There is no reason to disbelieve him. Though a minor contradiction is noted by the learned Tribunal, in the evidence of PW2, he stated that “he” purchased the tickets, whereas, at the time of evidence, he stated that “we” purchased the tickets. This minor contradiction is not a reason to reject the evidence of PW2. 13. It appears from the impugned judgment that learned Tribunal proceeded as though evidence is to be adduced to show that fall was due to rashness and negligence of the Railway authorities. The Tribunal found that no evidence was adduced to sustain the allegation that fall was due to rashness and MFA 120/2010 7 negligence of the Railway authorities. This was taken as a reason to dismiss the application. 14. It is not necessary to prove that there was rashness and negligence on the part of the Railway authorities for granting compensation under Section 16 of the Railway Claims Tribunal Act. It is irrelevant for granting compensation. Referring to various documents such as inquest report, postmortem certificate, etc., learned Tribunal appears to have doubted the veracity of the evidence and the contentions raised by the appellant. 15. The fact that deceased fell down from a running train is established by the evidence of PW2. It is supported by various documentary evidence such as Ext.A4-FIR, Ext.A5-copy of GD entry of Pattambi Police Station, Ext.A6-copy of inquest report, Ext.A9-copy of final report, etc. We are satisfied from the evidence adduced on behalf of the appellant that compensation is liable to be paid on account of death due to accidental fall of the deceased from a running train. MFA 120/2010 8 16. Dependant is defined under Section 123(b) of the Act. Dependant means, any of the relatives of the deceased passenger referred to in the sub-clauses of Section 123(b). If the deceased passenger is unmarried, his parent will be the dependant. A petition can be filed by the parent and he/she will be entitled for compensation. In this case, the deceased is an unmarried person and the application is filed by his father and mother. 17. Pending disposal of the claim petition, the father died and sister was impleaded as his legal heir. In the light of Section 123(b) of the Act, parent alone can be treated as the dependant, the deceased passenger being an unmarried person at the time of accident. Therefore, first appellant, who is the mother of the deceased, alone will be entitled for compensation. 18. There is no dispute that the amount payable as compensation is Rupees four lakhs, as per the provisions of the Act. Therefore, first appellant will be entitled to receive Rupees four lakhs as compensation. Learned counsel for the appellants submitted that compensation may be directed to be paid with MFA 120/2010 9 interest. On hearing both sides, we are satisfied that 6% interest per annum can be awarded on the compensation amount from the date of registration of the petition as held on **Union of India** ## **v. Brigeet Chacko** (2007 (3) KLT 603). In the result, the following order is passed: The respondent is directed to pay Rupees four lakhs to the first appellant with 6% interest per annum from the date of registration of the petition till payment of the amount. The amount shall be paid within two months from the date of receipt of a copy of this judgment. If there is any default in payment of compensation as stated above, interest rate shall be 7.5% per annum. This appeal is allowed. (K.Hema, Judge) (P.S.Gopinathan, Judge) tkv MFA 120/2010 10 ## **15.11.2012** //It is true that a sibling of the unmarried deceased will not come under the definition of dependant and therefore, as a dependant the sister of the deceased cannot claim compensation. But in this case, sister of the deceased, who is the second appellant, has not claimed compensation on her behalf as a dependant. The original claimant was the father of the deceased Assanar. But he died during the pendency of the proceedings before the Tribunal. On his death, sister of the deceased was also impleaded as a legal representative of the deceased father. The father is a dependant as defined under Section 123 of the Act. On his death, sister was impleaded and she is entitled to get compensation which is liable to be paid to the father. Therefore, the contention that first appellant, who is the mother, alone is entitled to compensation cannot be accepted. First appellantmother is entitled to 50% of the compensation on he own behalf. The compensation which is payable to the deceased father will go to first and second appellant equally.//