Salwanaly v. Union of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE A.K.BASHEER** **& THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI** **FRIDAY, THE 15TH OCTOBER 2010 / 23RD ASWINA 932** **MFA.No. 187 of 2006()** **--------------------( O.A.NO.160/1992 OF RAILWAY CLAIMS TRIBUNAL, ERNAKULAM)** **APPELLANT(S): PETITIONER:** **-------------------------** **SALWANALY, AGED 31 YEARS, S/O. ABDUL MAJEED, CARPET WEAVER, HOUSE NO.831, GANDHI NAGAR, COCHIN-682 020.** **BY ADV. SRI.MATHAI EAPEN VETTATH SMT.A.R.USHA SRI.VETTATH EAPEN MATHAI** **RESPONDENT(S): RESPONDENT** **---------------** **UNION OF INDIA, REPRESENTED BY GENERAL MANAGER, SOUTHERN RAILWAY, MADRAS-3.** **ADV. SMT.A.RAJESWARI, SC, RAILWAYS FOR R1** **THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 15/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **A.K.BASHEER & P.Q.BARKATH ALI, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.F.A.No.187 OF 2006** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15[th] day of October, 2010 ## **JUDGMENT** ## Basheer, J. This appeal is directed against the order passed by the Railway Claims Tribunal, Ernakulam Bench in an application filed by the appellant under Section 16 of the Railway Claims Tribunal Act 1987. The appellant contended before the Tribunal that he had sustained grievous injuries in a railway accident that occurred on August 28, 1992 when he fell down on to the track from the platform while he was attempting to board Vanchinadu Express in the course of his journey from Ernakulam to Kottayam. Appellant claimed a sum of Rs. 2,50,000/- as compensation for the alleged injury viz. traumatic amputation of his left hand at the shoulder level. He had sustained fracture of mandible and some other injuries also on left shoulder blade and pelvic ring as certified by the Orthopedician (Civil Surgeon) attached to General Hospital, Ernakulam. 2. The claim was resisted by the respondents contending inter MFA.No.187/2006 2 alia that the Tribunal had no jurisdiction to entertain and adjudicate the claim since the alleged injury was not on account of any accident as enunciated in Section 124 of the Railways Act 1989. 3. The Tribunal after framing appropriate issues and after examining the claimant and two of his witnesses as Pws 1 to 3 and perusing Ext.P1 to P3 documents produced by the claimant came to the conclusion that the application for compensation was not maintainable since the Tribunal had no jurisdiction. It was further held that the application did not attract the provisions of Section 124 A of the Railways ( Amendment) Act 1994 since the accident took place prior to the amendment. 4. We have perused the impugned order and the relevant materials available on record. We have heard learned counsel for the appellant and Smt.A.Rajeswari, learned standing counsel for the Railway Administration at length. 5. Ext.P1, the First Information Report dated August 28, 1992 registered by Railway Police Station, Ernakulam will undoubtedly show that the appellant was involved in an accident when he fell down MFA.No.187/2006 3 from Vanchinadu Express as contended by him. Ext.P2 Medical Certificate issued by Dr.C.K.Abraham, Orthopedician and Civil Surgeon Grade I, General Hospital, Ernakulam will reveal that amputation of the left hand of the appellant at the shoulder level has resulted in 90% permanent partial disability. The doctor has further stated that the amputation was as a result of the train accident that occurred on August 28, 1992. The certificate also refers to various other injuries on shoulder ( L), fracture mandible, fracture pubic rami bilateral etc. The certificate further indicates that the appellant was discharged from the hospital on November 16,1992. Ext.P3 is the communication sent by the Sub Inspector of Railway Police Station to the Superintendent of the General Hospital, Ernakulam requesting him to forward wound certificate/discharge certificate for the purpose of investigation of the Crime registered ( Crime No.50/92) in connection with the accident. 6. In this context, it may also be noticed that PW2, a doctor by profession was examined as a witness to the incident. PW3 issued Ext.P2 Medical Certificate. PW2 in his deposition categorically stated MFA.No.187/2006 4 that he had seen the appellant in the process of alighting the train shortly before the accident. According to the Tribunal, the act of the appellant in putting one leg on the platform and other on the foot board of the train was “ fool hardiness inviting risks when the train engine was being attached.” The Tribunal further proceeded to observe that the appellant was admittedly “neither trying to get into the compartment nor was he standing apart waiting for the engine to be attached after which he could have entered into the compartment before the train started.” We are afraid the above observation of the Tribunal cannot be sustained for reasons more than one. Even assuming the appellant was a little careless while making an attempt to board the train, it cannot be termed as a fool hardy action. 7. The appellant in his deposition as PW1 and PW2, the eye witness, who is a doctor by profession, had spoken about the manner in which the unfortunate incident took place. The appellant lost his left hand at the shoulder level apart from other injuries that he sustained in the process is very well corroborated and established by the police records and also Exts.P2 and P3 which we have referred to earlier. In MFA.No.187/2006 5 that view of the matter, the finding of the Tribunal that there was no sufficient evidence to show that the accident occurred as alleged by the appellant cannot be sustained at all. 8. The next question that may arise for consideration is whether the appellant could have maintained an application under Section 124 A introduced in the Act in 1994, especially since admittedly the accident occurred prior to the introduction of the said provision in the Amended Act. 9. The answer to the above question has to be in the negative in view of the settled legal position. 10. In Union of India & Ors. v. Sunil Kumar Ghosh ( AIR 1984 SC 1737) which was a case that arose under the pre-amended Act of 1890, their Lordships held that the Railway would not be liable to pay compensation in respect of an accident in which the passenger fell down and received injuries while the train was being shunted. It was laid down that in such an instance it cannot be said that an accident had “ occurred to the train or a part of the train so as to attract the liability under Section 82A of the Act”. The Apex Court further held that MFA.No.187/2006 6 though it may be an accident “ to the passenger”, it cannot be said that the accident was “ to the train”. 11. Since admittedly the accident in the case on hand had occurred prior to the introduction of Sec. 124 A in 1994 in the Railways Act 1989, the appellant could not have claimed compensation under the amended Act. Therefore, the view taken by the Tribunal cannot be faulted at all. In that view of the matter, no interference is warranted with the impugned order. The appeal fails and it is accordingly dismissed. ## **A.K.BASHEER, JUDGE** ## **P.Q.BARKATH ALI, JUDGE** sv. MFA.No.187/2006 7