Saravanan v. Union of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MRS.JUSTICE K.HEMA** **&** **THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN** **FRIDAY, THE 19TH DAY OF OCTOBER 2012/27TH ASWINA 1934** **MFA.No. 249 of 2010 ( ) ------------------------** **AGAINST THE ORDER/JUDGMENT IN OA.(LLU)ERS/2009/0173 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM DATED 16-02-2010** ## **APPELLANT(S)/APPLICANT:** **------------------------** **SARAVANAN, S/O. LATE PERUMAL, CHANDRA, KUMARAVEL STREET, VAZHAPPADY SALEM, NOW RESIDING AT ELIMANNIL, CHUMATHARA THIRUVALLA, PATHANAMTHITTA.** **BY ADV. SRI.SUNNY ZACHARIA** ## **RESPONDENT(S)/RESPONDENT:** **-------------------------** **UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI-3.** **BY ADV. SRI.JAMES KURIAN, SC, RAILWAYS** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K. HEMA & P.S. GOPINATHAN, JJ.** ...................................................... M.F.A.NO.249 OF 2010 ...................................................... Dated this the 19[th] day of October, 2012 ## **JUDGMENT** ## **Hema, J.** The appellant filed a petition before the Railway Tribunal, under Section 16 of the Railway Claims Tribunal Act. 1987, claiming a total amount of compensation of Rs.4 lakhs from the Southern Railway for the injury sustained by him in a railway accident. According to the claimant/appellant, on 8.9.2008 at about 4.45 p.m while he was traveling from Kayamkulam to Thiruvalla by the Kayamkulam-Ernakulam passenger train and he was about to get down at Thiruvalla Railway Station, the train started to move and he slipped down and fell on the track and sustained serious injuries. There was total amputation of left leg. Foot was separated and he sustained multiple rib fracture, lacerated wound on the right limb and various other injuries, consequent to the accident. He had total permanent disability. 2. The appellant was taken to the Pushpagiri Medical College, Thiruvalla immediately and he was admitted there. He : 2: ## M.F.A.NO.249 OF 2010 underwent treatment till 22.9.2008 at the said hospital. Due to financial stringency and other difficulties, he requested for a compulsory discharge from the hospital and moved to his native place at Salem and got admitted to Government Hospital, Salem. The treatment was continued. According to appellant, he visited his friend at Kayamkulam and was returning to Thiruvalla on the fateful day. He is only the bread winner of the family consisting of wife, a child aged 4 years and his parents. 3. Written objection was filed by the respondent. The fact that the appellant was injured in an untoward incident was denied. According to the respondent, the enquiries revealed that appellant was an unauthorized vendor at Thiruvalla station. He himself gave a statement to the police to that effect. The investigation conducted by the Divisional Railway Manager, Trivandrum also revealed that he was a trespasser who did not have any valid permission to enter railway premises or train. 4. The injury was self inflicted, as per the statement given by the appellant. The railway does not owe any : 3: ## M.F.A.NO.249 OF 2010 compensation to a trespasser for a self inflicted injury, it is further contended. The averment that the appellant travelled with valid ticket is denied and, according to the respondent, the appellant is put to strict proof of the said fact. The averment that purse is lost was made only to cover the fact that he was a trespasser, it is further contended. 5. Evidence was adduced on the side of the appellant. PW1 was examined and Exts.A1 to A5 were marked. On the side of the respondent, Ext.R1 was marked. But no oral evidence was adduced. On an analysis of the evidence, the Tribunal found that appellant admitted that he had not purchased the ticket. He was not aware from which place to which place he took up the journey etc. Considering the evidence given by PW1 himself, the Tribunal found that the applicant is not a bona fide passenger and he had not purchased any valid ticket. The application was, therefore, dismissed. This appeal is filed challenging the said dismissal order passed by the Railway Tribunal. 6. Heard both sides. Perused the records. Learned counsel for the appellant argued that the respondent has not : 4: ## M.F.A.NO.249 OF 2010 established that the appellant is not a bona fide passenger. As per the settled legal position, the burden is on the railway to establish that the applicant is not a bona fide passenger in the train. He has cited the decisions reported in **Joji C. John v. Union of India** (2002 (1) KLT 678) and **Union of India v. Leelamma** (2009 (1) KLT 914) in support of his contentions. It is submitted that it is the duty of the railway to conduct an enquiry within six months and a mahazer also is to be prepared immediately, but that was not done in this case. Had a mahazer been prepared, it would have been possible to reveal that the appellant is not a vendor, it is submitted. Since that is not done, the respondent failed to discharge to prove that the appellant is not a bona fide passenger, it is argued. 7. If a person travels in a train, the normal presumption is that he holds a valid ticket and therefore, the burden is heavily on the railway to prove that the applicant did not purchase any ticket, it is argued. The relevant passage from **Joji C. John v. Union of India** (2002 (1) KLT 678) is as follows: “Merely because she lost the ticket during : 5: ## M.F.A.NO.249 OF 2010 the accident by which she became unconscious, she cannot be labelled as “not a bonafide passenger”. Railway failed to prove that she was not a bonafide passenger when other incidents like her accident are not disputed”. 8. In **Union of India v. Leelamma (** 2009 (1) KLT 914 ) another Division Bench of this Court also took similar view. From the decisions cited above, it is clear that the burden is on the railway to prove that the applicant is not a bona fide passenger. 9. According to the respondent, appellant is an unauthorized vendor in the Tiruvalla railway station and he was not having any valid ticket for the journey. He has not taken up any journey on the relevant date. The averment that the ticket was in the purse and the purse was lost etc are not correct. It is contended that such contentions are taken up by the appellant only to circumvent the averment that he is a trespasser etc. 10. As per the averment made in the application, appellant was travelling in the train when the incident happened, but he : 6: ## M.F.A.NO.249 OF 2010 has no case that he had purchased any ticket on the fateful day, to travel in the train. Even though such fact was not specifically stated in the petition, he had filed an affidavit along with the petition, in which, he stated that he was holding a valid train ticket at the time of the accident. 11. However, in column No.7 of the application, it is stated as follows: “General ticket (ticket lost) train No.344 Kayamkulam – Ernakulam Passenger Train. Kayamkulam to Tiruvalla”. In the affidavit filed by the appellant, he also stated thus:“I was holding a valid train ticket at the time of the accident. I purchased from the Kayamkulam Railway Station to the destination of Thiruvalla. The ticket I was holding was kept safe in the purse which itself was lost in the train. Even though I have made earnest efforts to trace the purse and the ticket therein, were been an exercise in futile”. 12. To prove the case, the appellant filed an affidavit in lieu of chief examination. In paragraph-7 of the affidavit, the appellant stated that: “On the fatal day I had gone to Kayamkulam to see a person to request to arrange a job for me, but I could not find the person there. For the return of : 7: ## M.F.A.NO.249 OF 2010 the journey I had purchased the ticket from Kayamkulam to my destination Thiruvalla. During this occurance of fall and subsequent hospitalization my purse and the ticket was lost”. 13. Therefore the definite case of the appellant is that he purchased a ticket from Kayamkulam to his destination at Thiruvala and he had gone from Kayamkuam to Thiruvalla for a particular purpose. According to him, the ticket was in his purse but the purse and the ticket were lost during the incident and subsequent hospitalization. However, when PW1 was cross examined, he gave certain statements which makes his claim doubtful regarding purchase or possession of a valid ticket for the journey. 14. PW1 specifically deposed that :“ I am not aware the stations from which to where I undertook the journey but I came along with 40 other friends who had come along with me. I have not purchased the ticket but my friends might have purchased the ticket”. From the categoric statement given in the cross examination, it is crystal clear that he gave up the averments made in the petition and in the affidavits filed by him that he purchased the ticket by himself and kept it in : 8: ## M.F.A.NO.249 OF 2010 the purse, but the purse was lost along with the ticket etc. 15. The evidence given by PW1 is contrary to the plea taken up by him in the petition and in the chief examination. From the evidence of PW1, it can be seen that he had not purchased any ticket by himself and he was not sure whether his friends might have purchased the ticket. Even though he deposed that 40 other friends had come along with him, when he undertook the journey, he did not examine even one person to give evidence that the ticket was purchased by any one of them for his journey. 16. In the light of the evidence given by PW1 himself, it can be held that the appellant had not purchased any ticket for the journey and he is not even sure whether his friends had purchased the ticket. At any rate, there is no evidence to show that he purchased any ticket for the journey on the particular day when the incident happened. His evidence reveals that the appellant was not aware from which station to which station he had undertook the journey. In such circumstances, it is not discernible from the evidence of PW1 that he had purchased a valid ticket for the journey by the train, during which, the : 9: ## M.F.A.NO.249 OF 2010 untoward incident happened. 17. As per Section 2(29) of the Railway Act 'passenger' means a person travelling with a valid pass or ticket. In this case going by the evidence of PW1 himself, he has not purchased any valid ticket. He was not very sure whether any of the co-passengers had purchased a ticket for him. No evidence was also adduced to show that any other person had purchased the ticket. Therefore, there is no proof that appellant was a passenger at the time of untoward incident. 18. It is true that as per the settled position, the burden is upon the railway to establish that the appellant is not a bona fide passenger at the time of the untoward incident. To discharge such burden, it is not necessary that the railway must examine any person or produce any evidence in support of such contention. The railway can rely upon the evidence given by claimant himself to prove that he is not a bona fide passenger. Though respondent did not adduce any evidence to establish that appellant is not a bona fide passenger, evidence of PW1 and his admissions are sufficient to discharge the burden of proof. : 10: M.F.A.NO.249 OF 2010 19. Learned counsel for the appellant referred to certain provisions in the Railways Passengers (Manner of Investigation of Untoward Incidents) Rules, 2003 and argued that an investigation is to be conducted at the instance of the respondent but that has not been done in this case and the railway has also not procured any mahazer which would ought to have been prepared on the date of the accident and hence, the railway failed to discharge the burden of proof that appellant is not a bona fide passenger. 20. It is true that there are certain provisions in the above Rules which mandates that an investigation has to be conducted within a stipulated period, but it is not necessary to go into those details on the facts of this case since it is clear from the evidence of appellant himself that he was not a passenger at the relevant time. Learned counsel for the appellant strongly argued that the evidence of a witness has to be appreciated as a whole and if done so, it will be clear that answers given by PW1 in the cross examination do not relate to the incident which : 11: ## M.F.A.NO.249 OF 2010 happened in this case. According to him, PW1 in his cross examination stated that when he undertook journey, 40 other friends had also come along with him, but the respondent does not have such a case. 21. According to appellant, when he undertook journey alone, no other person was with him and therefore it has to be inferred that the admission made by the appellant that his friends might have purchased the ticket was with respect to some other journey and not the journey which is relevant in this case. With due respect, we are unable to accept the above argument. If the appellant was referring to some other journey, it should have been clarified in the re-examination. 22. In fact, the appellant was re-examined in this case but no such facts were elicited in the re-examination. In the absence of any evidence adduced to clarify the crucial admissions by PW1, we cannot accept the argument raised that the appellant was referring to some other journey. In the above circumstances, we find no reason to interfere in the : 12: M.F.A.NO.249 OF 2010 impugned judgment. This appeal is dismissed. **Sd/-** **K. HEMA, JUDGE.** **Sd/-** **P.S. GOPINATHAN, JUDGE.** cl /true copy/ P.S. to Judge : 13: M.F.A.NO.249 OF 2010