Rajeswari T.R. and others v Union of India

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 25[TH] DAY OF MAY 2022 / 4TH JYAISHTA, 1944 ``` ``` MFA NO. 46 OF 2016 ``` ``` AGAINST THE AWARD DATED 16.09.2014 IN OA.(IIu)/ERS/2014/0003 OF THE RAILWAY CLAIMS TRIBUNAL, ERNAKULAM ``` ## `APPELLANTS/APPLICANTS:` ``` 1RAJESWARI T.R., AGED 56, W/O. LATE BALAKRISHNA KURUP @ BABU, SREEVALSAM, PAINKULAM P.O., CHERUTHURUTHY, THRISSUR DISTRICT, KERALA PIN-679 531.(TEMPORARILY RESIDING AT ATHIRA NIVAS, CHALIKKAVATAM KARA,EDAPPALLY SOUTH VILLAGE, ERNAKULAM). 2JAYASREE S. BABU AGED 35, DAUGHTER OF LATE BALAKRISHNA KURUP @ BABU, LIC 490, PANAMPILLY NAGAR, ERNAKULAM-682 036. 3VINU S. BABU AGED 33, S/O. LATE BALAKRISHNA KURUP @ BABU, SREEVALSAM, PAINKULAM P.O., CHERUTHURUTHY, THRISSUR DISTRICT,KERALA, PIN-679 531. ``` ``` BY ADVS.SRI.ANIL S.RAJ SRI.T.ABY JACOB SMT.ANILA PETER SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. ``` ## `RESPONDENT/RESPONDENT:` ``` UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI-3. ``` ``` BY ADV SMT.ASHA CHERIAN, SC, RAILWAYS ``` ``` THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03.09.2021 THE COURT ON 25.05.2022 DELIVERED THE FOLLOWING: ``` ## **`M.F.A.No.46 of 2016 2`** ## **`JUDGMENT`** ## **`Dated this the 25[th] day of May, 2022`** The appeal on hand is preferred by the applicants whose claim for compensation was declined by the Railway Claims Tribunal, Eranakulam by an order passed on 16.09.2014 dismissing an application filed before it as O.A(IIu)/ERS/2014/0003. 2. The applicants are wife and children of one Mr.Balakrishna Kurup @ Babu, aged 66 years, who allegedly succumbed to injuries sustained in an untoward incident that occurred at Thaikkattukara, Aluva in the course of his travel on 30.05.2013 in a train proceeding from Shornur to Ernakulam. The railway ticket of the victim was lost in the incident and was not traced out. 3. According to the claimants, themselves alongwith the victim were residents of Ernakulam and shifted their residence to Cheruthuruthy in the year 2013. The victim was working as Office Secretary in CPI(M) Party Office at Vennala, Ernakulam and he occassionally travels to Cheruthuruthy to stay with his wife. He had been to his residence at Cheruthuruthy for three days and ## **`M.F.A.No.46 of 2016 3`** at about 9.30 am on 30.05.2013 he left Cheruthuruthy and reached Shornur. He bought a second class senior citizen's ticket to Ernakulam and prior to boarding the train contacted his wife and informed the factum. While travelling so, he accidentally fell down from the train, sustained severe injuries and succumbed to those after a shortwhile. The ticket bought by him, his pocket diary, spectacles and mobile phone were kept in the pocket of his shirt. Except the mobile phone, all other items were lost, in the incident. 4. The respondent denied the averment of the applicants in the application seeking compensation that the victim died in an untoward incident occurred on 30.05.2013. It was contended that enquiry made at the Railway Stations at Alwaye and Kalamassery revealed to them that an untoward incident was not reported there. It was further contended that had there been fall of the victim from the train, the incident would have been reported by the co-passengers to the Station Master of the nearest railway station and that would have been resulted in stopping of the train by a pull of the chain. According to them in the absence of such a report or chain pulling, a conclusion that an untoward incident as envisaged under Section 123(c)(2) of the Railways Act had occurred is not liable to be drawn. According to them the ## **`M.F.A.No.46 of 2016 4`** applicants must be put to proof on the travel of the deceased in the train with valid authority. The status of the applicants as legal heirs of the deceased was also denied by the respondent. 5. The Railway Tribunal framed issues on the basis of the rival pleadings raised by the parties as follows: - (1) Whether the victim was a bonafide passenger in the train? - (2) Whether the death of victim occurred in an untoward incident? - (3) Whether the applicants are dependants, if so, whether all the dependants are in the party array? - (4) Whether the respondent is liable to pay any compensation? If so to what sum and at what rate? - (5) Reliefs and costs? 6. The parties adduced evidence to substantiate their pleas and it consists of oral evidence tendered by PWs 1 and 2, documentary evidence consists of Exts.A1 to A9 and Ext.R1. 7. Issues 1 and 2 were considered together and found against the applicants. 8. The family relationship certificate issued by Village Officer, Edappally marked in evidence as Ext.A9, certifies that the applicants are wife, daughter and son of the victim. The aspect ## **`M.F.A.No.46 of 2016 5`** of dependency of the applicants having not been specifically challenged, was found in favour of them. Based on findings on issues 1 and 2, the applicants were found disentitled to compensation and accordingly the application was dismissed. 9. According to Sri.Anil S. Raj, the learned counsel for the appellants the oral evidence tendered by PW1 and PW2 and the documentary evidence adduced by the claimants were sufficient and satisfactory for the Railway Tribunal to draw a conclusion that the victim died in an untoward incident and to allow the application seeking compensation. According to him in the inquest report forming part of the evidence of the appellants as Ext.A2, it has been stated that body of the deceased was found lying in the railway track at 2.20 pm on 30.05.2013 by one Mr.Pradeep, a native of Aluva. The DRM report formed part of the evidence of the respondent as Ext.R1 reports categorically the place of occurrence and also refers to the Scene Mahazar prepared at the spot by the Investigating Officer. Had the above evidence been adverted to by the Railway Tribunal in the correct perspective, finding on points 1 and 2 would have been arrived at in the affirmative and in favour of the applicants. According to him, PW2 had deposed to have seen the purchase of ticket by the victim, but her oral evidence to that efffect was discarded by the ## **`M.F.A.No.46 of 2016 6`** Tribunal for her inability to depose about the nature of the ticket bought and the train in which he had travelled on the day. 10. Per contra, the learned counsel on behalf of the respondent argued in support of the finding of the Railway Tribunal in the judgment assailed. According to him Tribunal is perfectly justified in dismissing the petition seeking compensation. 11. The evidence on record is required to be appreciated in the backdrop of the rival arguments set forth. The wife of the victim was examined as PW1. She was not accompanying the victim during his journey in the train on the fateful day. She has categorically deposed each aspects of her claim based on her hearsay information about the incident obtained from others. FIS was not lodged by an ocular witness, but only by the brother of the victim. He tendered the version that his brother was travelling in the train from Shornur to Ernakulam by sitting in the door steps and fell down therefrom. According to PW1, the ticket authorizing the journey of the victim on the fateful day was lost. One Mrs.Suvarna Prakash who allegedly was available at the railway station on the fateful day and witnessed the purchase of ticket by the victim was examined as PW2. According to her, while getting down from a train after the journey from Ernakulam ## **`M.F.A.No.46 of 2016 7`** to Shornur on 30.05.2013, about 10.30-10.45 she met the victim at the railway station holding a ticket in his hand and responding to her querry said that he is proceeding to Ernakulam. According to her in the evening of the same day she had learnt about the death of the victim in a train accident, from her sister who is a family friend of the wife of the victim. In cross examination PW2 did not say anything about the nature of the ticket carried by the victim and the train in which he had travelled on that day. 12. From a scrutiny of the evidence of PW2 in toto, this Court is convinced that her version about meeting of the victim holding a ticket and the information given to her that he is there to travel in the train to Ernakulam was not shaken during cross examination by the defence. True that she was unable to say about the nature of the ticket and the train in which the victim travelled on the day. But, it is found on a close scrutiny of the version of PW2 that her meeting of the victim was an accidental one while hurrying to get out of the railway station, concluding her journey and during the haste of the victim to get into the train to start his journey. There was no occasion to have a detailed conversation at that point of time. The Tribunal ought to have found in the nature of the evidence tendered by PW2 that she was a natural witness and not a tutored one. If was tutored ## **`M.F.A.No.46 of 2016 8`** promptly, PW2 would have correctly stated about the nature of the ticket and even the number of the train in which the victim had undertaken his journey on that day. Therefore, the version of PW2 ought to have been taken credence of by the Tribunal. 13. True that it was reported in Ext.R1 that the incident was not recorded in the control message book or untoward incident Register maintained at Kalamassery and Aluva Railway Stations. A contention was also taken by the respondent that the report is silent on pulling of chain by co-passengers. According to them the incident was allegedly occurred at 2.20 p.m., which was peak time of passengers being alert and in case the incident was actually occurred in the manner, there was every likelihood of anyone among them to pull the train to convey information about it to the Railway Station, nearby. 14. According to PW1 the information transpired to her in her enquiry was that her husband during his journey by sitting in the door steps fell down therefrom and sustained injuries and the body of the victim was found lying in the railway track fully injured. 15. Ext.A2 is the report of the inquest held after spotting the body of the victim at the railway track. The postmortem examination of the body of the deceased was also held wherein ## **`M.F.A.No.46 of 2016 9`** the cause of death was certified as head injury. 16. The contention of the respondent was that the death of the victim was not due to any untoward incident but in some other manner. The version of PW2 coupled with the place wherefrom the body of the victim was recovered with injury on his head would indicate that the death was occurred during the course of journey in the train and due to a fall therefrom. 17. The applicants had relied on Joji C. John V. Union of India (2002(1) KLT 678) wherein it was held that the onus to prove that the victim was not a bonafide passenger in the train is on the Railway. D.Srinivas V. Union of India (2000 ACJ 889 (Karnataka) and Ramdhan and another V. Union of India and another (2009 ACJ 2487(Bombay) were also cited by the applicants before the Railway Tribunal to establish that the presumption that the victims in untoward incidents are passengers with valid ticket is always in favour of the applicants. Therefore, it was canvassed that eventhough the ticket is not produced and marked in evidence, it can be presumed from the attending circumstances that the victim was a bonafide passenger in the train and the applicants being his legal heirs are entitled to get compensation from the Railway. 18. The Tribunal was reluctant to rely on the decisions ## **`M.F.A.No.46 of 2016 10`** supra in view of the dictum laid down by the High Court of Karnataka in Union of India V. Lakshmi and Ors. [II (2014) ACC 11 Kar. )] which reads:- “The relevant provisions of Railways Act is very clear, in that, if a person suffers injury or death in an untoward incident as contemplated under S.123(c)(2) of the Railways Act, 1989, he/his family members are entitled to seek compensation provided, he is a bonafide passenger with valid ticket. That means, either on his body or in his possession such ticket should be found at the time of accident, which is valid for journey in that particular train for that particular day. If that is not found, then the reasonable presumption is that he was travelling without valid ticket. Assuming for a moment, he has travelled with other passengers and if a valid ticket is produced from the possession of another person travelling alongwith him also would suffice to show that he was a bonafide passenger with valid ticket” It was held by the Tribunal in the above context that in the absence of a valid train ticket, the victim cannot be termed as a bonafide passenger met with an untoward incident during journey in a train and therefore the claim of the applicants under Section 124 A of the Railways Act is defeated. 19. The learned Counsel for the appellants has cited Rina Devi V. Union of India (2018 KHC 7518 =2018 ACJ 2085) wherein it was held: ## **`M.F.A.No.46 of 2016 11`** “Factual matrix of the case is that Rina Devi filed Claim Case No.OA 00357 of 2002 against Union of India, through the General Manager, Eastern Railway, Kolkata under S.125 of Railways Act for awarding compensation to the tune of Rs.4,00,000 with the case in succinct that her husband Jatan Gope purchased a ticket of second class for Karauta to Khusrupur and boarded the train bearing No.543 Up Rajgir-Danapur Passenger at Karauta Railway Station. As soon as the train arrived near east cabin of Khusrupur Railway Station, he accidentally fell down from the running train due to heavy rush of passengers inside the compartment and died on the spot”. The argument advanced by the claimants in the case was that “xxxxxxx the deceased was a bona fide passenger as he had purchased a ticket of second class for undertaking travelling by the said train at Karauta Railway Station and the said case of the claimant also stands corroborated by the uncontroverted affidavit of one Kailash Gope who had witnessed the deceased purchasing the ticket and boarding the said train at Karauta Railway Station as the said witness was not cross-examined by the respondent. It is further submitted that the said ticket was lost somewhere in the said accident so it was not recovered from the possession of the deceased at the time of preparation of the inquest report. She has also given affidavit in this regard. The ## **`M.F.A.No.46 of 2016 12`** aforesaid aspect of the case explicitly indicates that the deceased was a bona fide passenger. It is further submitted by the learned counsel for the appellant that the deceased was cut by the aforesaid train during the course of travelling as reported by the police officer after investigation of the case in its final report. Hence, it is a case of 'untoward incident' and not of 'runover'. Hence, the impugned order passed by the learned Tribunal is wrong and illegal and is liable to be set aside.” 20. The contention of the learned counsel for the respondent before the Tribunal was that the deceased was not travelling in the train as a bonafide passenger rather he was in a state of mental disorder and while wandering near railway track in such state of mind was cut into two pieces by some unidentified train. 21. The claimant had taken a stand that the ticket was lost in the accident, the cross examination vented her ignorance about filing of the ticket in the case, which was taken as having the impact of ruling out her case of loss of ticket during accident. 22. The claim was dismissed by the Tribunal mainly on three grounds as follows:- “(i) that there is no eyewitness to the occurrence (ii) that it is a case of 'run-over' and not 'untoward incident' and ## **`M.F.A.No.46 of 2016 13`** (iii) that deceased was not a bona fide passenger.” ## In the appeal preferred, the appellate court found “ So far as the eyewitness is concerned, in such type of accident by train generally there happens to be no eye witness to the accident as no one comes forward to give evidence as eyewitness as the commuters of the train avoid to enter into the complication of the legal proceeding. Moreover, in my considered opinion, such type of cases should not be thrown away merely for want of eyewitness to the accident and that too in the presence of consistent evidence in substantiation of the case of the claimant regarding the incident on record. Regarding bona fide passenger, it is the case of the appellant that the deceased had purchased second class ticket at Karauta Railway Station for undertaking travelling by the said train. Though, the said ticket was not recovered from possession of the deceased by the police personnel at the time of accident as the same has not been found mentioned in the inquest report, but, Kailash Gope, (AW 2), by filing affidavit has stated that the deceased had purchased valid ordinary ticket at Karauta Railway Station for travelling from Karauta to Khusrupur in his presence and after purchasing the ticket, he had boarded the said train. The said witness has not been cross-examined by the respondent and from the order dated 24.09.2012 of the Tribunal, it appears that the learned Tribunal did not find it necessary to cross-examine the said witness claiming him to be not an eyewitness to the accident. Hence, the ## **`M.F.A.No.46 of 2016 14`** aforesaid statement of AW 2 that the deceased Jatan Gope purchased the second class ticket at Karauta Railway Station for traveling by the said train and boarded the aforesaid train stood admitted to the respondent. Division Bench of this Court in Kaushalaya Devi Vs. Union of India, PLJR 2008(3) 711, has been pleased to hold that where the body of the deceased was found in the precincts of the Railway Station, the presumption is that the deceased was a bona fide passenger and had purchased a ticket. The onus to prove that the deceased was a ticketless traveller or ticketless wanderer lies on the shoulder of the Railways. But the respondent has failed to prove the same. In the aforesaid facts, I find that the deceased Jatan Gope was a bona fide passenger.” 23. The above dictum was laid down by the court relying on Kaushalaya Devi and Ors. v. Union of India [2008 (3) PLJR 711] wherein it was held that “ where the body of the victim was found in the precincts of the railway station, the presumption is that the deceased was a bonafide passenger and had purchased a ticket and the onus to prove that the deceased was a ticket less traveller or ticketless wanderer lies on the shoulder of the Railways.” 24. In the case on hand the evidence of PW2 to the extent she had found the victim proceeding to board the train holding a ## **`M.F.A.No.46 of 2016 15`** ticket remained uncontroverted. Her failure to say about the nature of the ticket and the number of the train in which journey was undertaken by the victim cannot be a ground to discard her version in toto. A person meeting another accidentally will not normally enquire about the nature of the ticket and the train in which the journey is proposed to be undertaken by the latter. The enquiry will only be about the destination to which the journey would be. In the case on hand PW2 has spoken about the information obtained from the victim that he is travelling to Ernakulam. Therefore, the version of PW2 ought to have been relied on by the Tribunal. 25. The claim of the applicant was that the ticket and other belongings of the victim were lost. However, indisputably his body was recovered from the precincts of the railway track. The injury sustained by the deceased being on his head the claim of the applicants that the victim died on account of an injury sustained in a fall from train where he had been travelling is only to be accepted. 26. As held by the Division Bench of the Patna High Court, when it stands established that the body of the deceased was recovered from the precincts of a railway track the onus is on the railway to establish that he was not a bonafide passenger and ## **`M.F.A.No.46 of 2016 16`** therefore he is disentitled to get compensation under Section 124 A of Railways Act. 27. The railway failed to adduce any evidence to discharge the onus cast upon them. Therefore, the judgment of the Tribunal suffers for illegality, impropriety and infirmity and is liable to be set aside. In that event the claimants are to be found entitled to get compensation for the death of Sri. Balakrishna Kurup @ Babu in the untoward incident occurred on 30.05.2013. 28. The quantum of compensation payable is required to be assessed. The Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 (hereinafter referred to as ‘the Rules’) incorporate a schedule prescribing the quantum of compensation payable in cases of death as well as injuries. The amount of compensation payable at the relevant time of raising of the claim and passing of the judgment assailed was Rs.4,00,000/-. During pendency of the appeal on hand, in the year 2017, by way of amendment amount of compensation in cases of death was enhanced from 4,00,000/- to Rs.8,00,000/- . The quantum of compensation the appellants are liable to be received was the subject matter of decision in Union of India v. Radha Yadav [(2019) 3 SCC 410] and one among the questions mooted for consideration was “whether the quantum of ## **`M.F.A.No.46 of 2016 17`** compensation should be as per the prescribed rate of compensation as on the date of application/incident or on the date of order awarding compensation.” Paragraphs 18 and 19 of the above judgment are extracted hereunder: “18. We are of the view that law in the present context should be taken to be that the liability will accrue on the date of the accident and the amount applicable as on that date will be the amount recoverable but the claimant will get interest from the date of accident till the payment at such rate as may be considered just and fair from time to time. In this context, rate of interest applicable in motor accident claim cases can be held to be reasonable and fair. Once concept of interest has been introduced, principles of Workmen Compensation Act can certainly be applied and judgment of 4-Judge Bench in Pratap Narain Singh Deo, 1976 (1) SCC 289 will fully apply. Wherever it is found that the revised amount of applicable compensation as on the date of award of the Tribunal is less than the prescribed amount of compensation as on the date of accident with interest, higher of the two amounts ought to be awarded on the principle of beneficial legislation. Present legislation is certainly a piece of beneficent legislation. 19. Accordingly, we conclude that compensation will be payable as applicable on the date of the accident with interest as may be considered reasonable from time to time on the same pattern as in accident claim cases. If the amount so calculated is less than the amount prescribed as ## **`M.F.A.No.46 of 2016 18`** on the date of the award of the Tribunal, the claimant will be entitled to higher of the two amounts. This order will not affect the awards which have already become final and where limitation for challenging such awards has expired, this order will not by itself be a ground for condonation of delay. Seeming conflict in Rathi Menon, 2001 (3) SCC 714 and Kalandi Charan Sahoo 2018 (7) SCJ 159=(2017) SCC Online SC 1638 stands explained accordingly. The 4-Judge Bench judgment in Pratap Narain Singh Deo, 1976 (1) SCC 289 holds the field on the subject and squarely applies to the present situation. Compensation as applicable on the date of the accident has to be given with reasonable interest and to give effect to the mandate of beneficial legislation, if compensation as provided on the date of award of the Tribunal is higher than unrevised amount with interest, the higher of the two amounts has to be given.” 29. In the light of the above dictum the applicants are entitled to get the higher amount as per the amended schedule which permits receipt of Rs.8,00,000/- as compensation for the death of the victim. Appeal succeeds and is allowed. The impugned judgment dismissing O.A.(IIu)ERS/2014/0003 by the Railway Claims Tribunal, Ernakulm is set aside. O.A.(IIu)ERS/2014/0003 is allowed. The applicants are found entitled to receive Rs.8,00,000/- as compensation from the respondent. The respondent is directed to deposit Rs.8,00,000/- in favour of the ## **`M.F.A.No.46 of 2016 19`** applicants within one month from the date of this judgment. In case of any default in depositing the sum above, the quantum payable as compensation is liable to attract interest at the rate of 6% per annum from the date of default, till realisation. Sd/- ``` MARY JOSEPH JUDGE ``` ``` MJL ```