R.C. Jayamohan and Sudhakumari v Union of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **MONDAY, THE 21ST DAY OF DECEMBER 2020 / 30TH AGRAHAYANA, 1942** ## **MFA.No.244 OF 2010** **AGAINST THE JUDGMENT IN OA(llu)ERS/2010/0006 OF RAILWAY CLAIMS TRIBUNAL, ERNAKULAM BENCH** ## **APPELLANTS/APPLICANTS:** **1 R.C.JAYAMOHAN AGED 48 YEARS, S/O.SIMON, J.S.BHAVAN,VELANVILLA,AMARAVILA P.O., TRIVANDRUM.** **2 SUDHAKUMARI, AGED 45 YEARS, W/O.R.C.JAYAMOHAN J.S BHAVAN,VELANVILLA,AMARAVILA P.O,TRIVANDRUM.** **BY ADV. SRI.MARTIN G.THOTTAN** ## **RESPONDENT/RESPONDENT:** **UNION OF INDIA, REPRESENTED BY GENERAL MANAGER, SOUTHERN RAILWAY,CHENNAI-1.** **BY SRI.S.ANANTHAKRISHNAN, SC, RAILWAYS** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18-12-2020, THE COURT ON 21-12-2020 DELIVERED THE FOLLOWING:** **M.F.A.No.244 of 2010** ## **:-2-:** ## **Dated this the 21[st] day of December, 2020** ## **J U D G M E N T** Application filed by parents of the deceased under Section 16 of the Railway Claims Tribunal Act, 1987 was dismissed by the Railway Claims Tribunal, Ernakulam Bench, by impugned order dated 03.09.2010. The order is challenged by the dependents/parents. 2. The deceased was a plus 2 student and was holding a privilege pass issued by Section Engineer (Works) Southern Railway. His father/first applicant is an employee in the railway working as carpenter. On 02.02.2009, the deceased had an accidental fall at Amaravila railway station while trying to board the Thiruvananthapuram-Nagercoil passenger train and immediately died. Compensation was claimed under the unamended Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 ## **M.F.A.No.244 of 2010** ## **:-3-:** (for short, 'the Rules'). **==> picture [402 x 11] intentionally omitted <==** (llu)ERS/2010/0006 for two reasons. **==> picture [395 x 171] intentionally omitted <==** (b) The deceased did not hold the pass for the route undertaken for journey. **==> picture [402 x 13] intentionally omitted <==** counsel for the appellants before me. **==> picture [402 x 12] intentionally omitted <==** appearing for the respondent railway as well. **==> picture [437 x 76] intentionally omitted <==** ## **M.F.A.No.244 of 2010** **:-4-:** took the view that the act of the deceased being punishable under the Railways Act, his claim for compensation is barred by Section 124-A. This finding, according to me, does not find support under law. The respondent has no case that ignoring the immediate warnings given by the officials, the deceased tried to rush into the train. The evidence on record does not indicate that the act of the deceased was deliberate. A claim for compensation made under the Act cannot be rejected on the ground of the victim having failed to take reasonable care. It is settled by the Honourable Apex Court that the liability of the Railways under the Act is strict and based on no fault. An illuminating judgment reported in **Union of India v. Prabhakaran Vijaya Kumar (2008(2) KLT 700)** is highly relevant in this respect. Therefore, I reject the finding of the Tribunal that the claim made by the dependents ## **M.F.A.No.244 of 2010** ## **:-5-:** for compensation is not sustainable. 7. Similarly the finding that the deceased was not holding a valid privilege pass also is not factually correct. The Tribunal found that the deceased was holding a pass on the date of accident. What is rather pointed out by the Tribunal is that the pass was issued for Thiruvananthapuram-Chennai direct route other than the route availed by him, but the deceased made use of the pass for travel through a route which was not direct and authorised. 8. The accident was at Amaravila Railway Station which lies between Thiruvananthapuram and Nagercoil. Nagercoil is a Station that lies between Thiruvananthapuram and Chennai. The Tribunal seems to have thought that since Amaravila does not fall in the direct route between Thiruvananthapuram and Chennai, the pass was not validly used. The learned ## **M.F.A.No.244 of 2010** ## **:-6-:** counsel for the appellants submitted that this finding is factually incorrect. The learned counsel's submission seems to be correct. There is nothing on material to indicate that Amaravila is not part of direct route from Thiruvananthapuram to Chennai. 9. In my view, if at all a slight deviation was taken by the deceased also, it is not a very serious matter when the entire scheme of the legislation which is intended to benefit the community of passenger is appreciated in its broader perspective. In my opinion, having regard to the entire evidence on record, the Railway Tribunal erred in finding that the deceased was not a _bona fide_ passenger. The situation would have been different, had the journey been without a privilege pass at all. I, therefore, hold that the impugned order passed by the Tribunal is bad under ## **M.F.A.No.244 of 2010** ## **:-7-:** law and liable to be set aside. 10. There is no dispute that the appellants are the dependents of the deceased. In view of the above finding, I hold that they are entitled to compensation. The maximum amount of compensation awardable during the relevant time under the Rules was Rs.4 lakhs. On 01.01.2017 the Rules were amended enhancing total compensation to Rs.8 lakhs. 11. Then arises the question as to the amount of compensation to which appellants could be held to be entitled. The amount claimed was Rs.4 lakhs as per the schedule in the Act as it stood on the date of accident. The schedule to the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 was amended on 01.01.2017 and the amount was enhanced to Rs.8 lakhs. The learned counsel for the appellants submitted that appellants are entitled to the benefit of the ## **M.F.A.No.244 of 2010** ## **:-8-:** amendment and entitled to get Rs.8 lakhs as compensation in view of the principles laid down in **Union of India v. Rina Devi [2018(2) KLT 1060(SC)]** and **Union of India v. Radha Yadav [2019(1) KLT Online 3256(SC)]** . My attention was drawn to paragraph No.10 of **Radha Yadav's** case by the learned counsel for the appellants, which read as follows; “10. The issue raised in the matter does not really require any elaboration as in our view, the judgment of this Court in the case of Rina Devi (Supra) is very clear. What this Court has laid down is that the amount of compensation payable on the date of accident with reasonable rate of interest shall first be calculated. If the amount so calculated is less than the amount prescribed as on the date of the award, the claimant would be entitled to higher of these two amounts. Therefore, if the liability had arisen before the amendment was brought in, the basic figure would be as per the Schedule as was in existence before the amendment and on such basic figure reasonable rate of interest would be calculated. If ## **M.F.A.No.244 of 2010** ## **:-9-:** there be any difference between the amount so calculated and the amount prescribed in the Schedule as on the date of the award, the higher of two figures would be the measure of compensation. For instance, in case of a death in an accident which occurred before amendment, the basic figure would be Rs.4,00,000/-. If, after applying reasonable rate of interest, the final figure were to be less than Rs.8,00,000/-, which was brought in by way of amendment, the claimant would be entitled to Rs.8,00,000/-. If, however, the amount of original compensation with rate of interest were to exceed the sum of Rs.8,00,000/- the compensation would be in terms of figure in excess of Rs.8,00,000/-. The idea is to afford the benefit of the amendment, to the extent possible. Thus, according to us, the matter is crystal clear. The issue does not need any further clarification or elaboration.” 12. In the instant case, the accident occurred on 02.02.2009 and before the amendment made to the schedule to the Rules. If reasonable interest of 10% is added to the basic figure, the final figure would be less than Rs.8 lakhs brought in by the ## **M.F.A.No.244 of 2010** **:-10-:** amendment. Therefore, the appellants would be entitled to an amount of compensation of Rs.8 lakhs following the principles laid down in **Radha Yadav's** case. In the result, the appeal is allowed and the impugned judgment dated 03.09.2010 of Railway Claims Tribunal, Ernakulam Bench, is hereby set aside. O.A.(llu)/ERS/2010/0006 is allowed directing the respondent Union of India to pay an amount of Rs.8 lakhs towards compensation to the appellants within a period of one month from today. All pending interlocutory applications are closed. Sd/- **T.V.ANILKUMAR JUDGE** ami/ ## **M.F.A.No.244 of 2010** ## **:-11-:** ## **APPELLANT'S ANNEXURES :** **ANNEXURE-A1 : TRUE COPY OF THE DRM REPORT WITHOUT ANNEXURES, WHICH IS MARKED AS EXHIBIT R1 BEFORE THE TRIBUNAL.**