Rose Bijoy and Others v Union of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 31ST DAY OF JANUARY 2020 / 11TH MAGHA, 1941** ## **MFA.No.10 OF 2020** **AGAINST THE JUDGMENT IN OA 1/2019 DATED 25-10-2019 OF RAILWAY CLAIMS TRIBUNAL, ERNAKULAM BENCH** ## **APPELLANTS/APPLICANTSS:** **1 ROSE BIJOY, AGED 38 YEARS RESIDING AT NADAKAVUKARAN HOUSE, CO-OPERATIVE ROAD, CHEMBUKKAVU, THRISSUR.P.O., THRISSUR-680020. 2 HAZEL MARIA BIJOY, AGED 8 YEARS (MINOR), RESIDING AT NADAKAVUKARAN HOUSE, CO-OPERATIVE ROAD, CHEMBUKKAVU, THRISSUR.P.O., THRISSUR-680020. (MINORS REP. BY MOTHER AND GUARDIAN THE FIRST APPLICANT) 3 HANOCH GEORGE BIJOY, AGED 2 YEARS (MINOR), RESIDING AT NADAKAVUKARAN HOUSE, CO-OPERATIVE ROAD, CHEMBUKKAVU, THRISSUR.P.O., THRISSUR-680020. (MINORS REP. BY MOTHER AND GUARDIAN THE FIRST APPLICANT)** **BY ADVS. SRI.PREMCHAND M. SMT.K.ANITHA JOHN SMT.K.R.CHITHRA** ## **RESPONDENT/RESPONDENT:** **UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI-600003.** **R1 BY ADV. SRI.C.DINESH – SC** **THIS MISC.FIRST APPEAL HAVING BEEN FINALLY HEARD ON 31.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MFA 10/20 2 ## **JUDGMENT** The appellants are the claimants in O.A.No.1/2019 before the Railway Claims Tribunal, Ernakulam Bench (hereinafter referred to as 'the Tribunal' for short) and they assail the order of the said Tribunal dismissing their claim finding that the facts stated by them are not correct. 2. According to the appellants, deceased Bijoy, who is the husband of the first among them and father of appellants 2 and 3, was travelling in Venad Express from Thiruvananthapuram to Trissur on a valid ticket and during the said travel, he fell of from the train and died, being crushed under its wheels. The appellants assert that the factum of the accident and the manner in which it happened is evident from the documents produced by them before the Tribunal and marked as Exts.A1 to A7; but that the Tribunal dismissed their claim MFA 10/20 3 merely relying on the enquiry report obtained by the respondent-Southern Railway from their Divisional Railway Manager, a copy of which has been marked on record as Ext.R1. They say that as per Ext.R1, the version of the Southern Railway was that deceased Bijoy cut across the railway line unauthorisedly, when he was hit by the train, crushing him to death. The appellants say that this opinion in Ext.R1 is not corroborated by any cogent evidence; and therefore, that the Tribunal ought not to have relied upon it, to dismiss their claim in the manner it has been done through the impugned order. 3. In response to the afore submissions made on behalf of the appellants by Smt.K.R.Chithra, the learned Standing Counsel for the Southern Railway, Sri.C.Dinesh, submits that the claim of the appellants is wholly untenable and _per se_ unsustainable because, the MFA 10/20 4 ticket which was alleged to have been purchased by deceased Bijoy was never recovered nor produced before the Tribunal. He says that, as is evident from Ext.R1 FIR as also Ext.A4 Inquest Report, the deceased did not fall from the train while travelling, but was hit by it while he tried to cross the rail unauthorisedly. He, therefore, prays that this appeal be dismissed, asserting that the Tribunal has arrived at its conclusions validly and tenably. 4. I have considered the afore submissions and have also examined the materials on record. 5. Before I venture to assess the rival contentions on its merits, I must record that though the impugned order refers to Exts.A1 to A7, it discusses only Exts.A1 to A4, without dealing with Exts.A5, A6 and A7 in any manner whatsoever. 6. That said, the Tribunal has evidently MFA 10/20 5 relied upon Ext.A1-FIR, Ext.A2-copy of the final investigation report and Exts.A3 and A4 Inquest Report and the Post-mortem Certificate respectively to conclude that the deceased did not fall from the train but was hit by it while unauthorisedly crossing the rail. When I go through the impugned order in detail, it is evident that the Tribunal has evaluated the factual assertions within the ambit of Section 123(c) of the Railways Act, which defines 'untoward incident' and has then concluded that since the deceased did not fall from the train, but was hit by it while crossing the rail, none of the provisions of the said section would apply and therefore, that the claim is not maintainable. 7. However, what is evident from the impugned judgment is that the conclusion of the Tribunal, that the deceased was hit by the train while crossing the rail, has been arrived MFA 10/20 6 solely on the basis of the FIR and the final report, but without the scene mahazar or such other material being made available to it by any of the parties, which could have shown the manner in which the body of the deceased was found at the scene. Without such evidence being available, I cannot see how the Tribunal has concluded as it has done, since neither Ext.A1FIR or Ext.A2-Final report of the Police conclusively say how the accident occurred. Further Ext.A3-Inquest Report or Ext.A4-Postmortem report can reflect on how the deceased fell under the train, though it may offer an insight to the manner of death and nature of injuries. This is crucial because the rival sides are at variance as to the manner in which the deceased was killed, with the claimants asserting that he fell from the train; while the Southern Railway assert that he was hit by the train while crossing the rail. If, as MFA 10/20 7 stated by the claimants, the deceased had fallen from the train and crushed under its wheels, then merely because his ticket was not recovered cannot be the sole reason why the provisions of Section 123(c) would not apply, since it is certainly possible that during such a horrific accident, same may have been lost or become incapable of recovery subsequently. This by itself, ought not to have been taken by the Tribunal to hold that he is not a valid passenger or that he 'trespassed' into the rail. 8. I am, therefore, afraid that the conclusions of the Tribunal in the impugned order do not appeal to me particularly because, as I have already said above, the most relevant evidence that should have been prodcued by the parties was the scene mahazar and such other materials to show how the accident occurred, rather than the Tribunal having been relied MFA 10/20 8 upon Ext.A1-FIR and Ext.A2 copy of the final report, which merely says that the deceased was trapped under the wheels of the train without explaining in any manner how it happened. 9. I say as afore because, a close reading of Exts.A1 and A2 would not show that the deceased was killed on account of the fact that he 'trespassed' into the rail but it only says that his body was found under the train's wheels. In fact, going by Ext.R1, which is the internal enquiry report of the Southern Railway, the body of the deceased was found entangled under the wheels of the train and the Divisional Railway Manager concluded that the victim crossed the rail and was hit by the train. As I have said above, the conclusions to that effect, arrived at by the Tribunal relying on Ext.R1, cannot be granted approval by this Court; and am certainly of the view that the matter should be reconsidered by the Tribunal, MFA 10/20 9 after affording necessary opportunity to both sides to establish the cause of accident and the manner in which the deceased was killed, which can be better assessed on the basis of the scene mahazar and such other materials that the parties may produce. 10. I am also guided, in my conclusions herein, by the judgment of this Court in ## **Sunitha C and Others v. Union of India [2016(4)** **KHC 129]** , wherein, a learned Bench of this Court, referring to various other precedents, have declared that the Tribunal should endeavour not to deny compensation to unfortunate victims but will be entitled to do so only in such circumstances that warrant it. Consequently, I allow this appeal and set aside the impugned order issued by the Railway Claims Tribunal; with a further direction to reconsider the matter afresh, after affording necessary opportunity to both sides; clarifying MFA 10/20 10 that the claimants will be at liberty to produce fresh documents and lead fresh evidence, thus leading to a final order to be issued by it without any avoidable delay. In the nature of the circumstances seen above, there will be no order as to costs and direct the parties to suffer their respective costs. **Sd/-** **DEVAN RAMACHANDRAN** RR **JUDGE**