Sheela and Sunitha v Union of India

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE P.SOMARAJAN FRIDAY, THE 21ST DAY OF JULY 2017/30TH ASHADHA, 1939 ## **MFA.No.130 of 2014 (B)** AGAINST THE JUDGMENT IN OA NO.(llu)/ERS/2014/0006 OF THE RAILWAY CLAIMS TRIBUNAL, ERNAKULAM, DATED 28-08-2014. ## APPELLANTS:APPLICANTS: 1. SHEELA, AGED 45 YEARS, W/O.LATE RAJAN, CHAVATHA PARAMBIL,PALAPPURAM, OTTAPALAM, PALAKKAD DISTRICT. 2. SUNITHA, D/O.LATE RAJAN, CHAVATHA PARAMBIL, PALAPPURAM, OTTAPALAM, PALAKKAD DISTRICT. BY ADV. SRI.V.B.RAMANUNNI MENON ## RESPONDENT:RESPONDENT: UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI, THAMIL NADU – 600 001. BY ADV. SRI.JOHN MATHEW,SC, RAILWAYS BY ADV. SRI.S.PRASHANTH, SC, RAILWAYS BY SRI.C.S.DIAS,SC, RAILWAYS THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 21.07.2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K. Harilal & P. Somarajan, JJ.** **----------------------------------------------------** **M.F.A.No.130 of 2014 (B)** **---------------------------------------------------Dated this the 21[st] day of July, 2017** ## **JUDGMENT** ## **Somarajan, J.** Against the order dated 28.8.2014 in O.A.No.(llu)/ ERS/2014/0006, dismissing the application for compensation on account of the death of one Rajan @ Sundaran, the applicants, legal heirs of the deceased, came up with this first appeal. The application was filed before the Railway Claims Tribunal, Ernakulam, by the legal heirs of the deceased Rajan @ Sundaran on account of the untoward incident happened on 21.2.2013, resulting into the death of the victim while boarding a moving train, Ernakulam-Guruvayur Passenger, at the Thrissur Railway Station. 2. The application was dismissed by the Tribunal mainly on the ground that the deceased was not a _bona fide_ ## **M.F.A.No.130 of 2014 (B)** :: 2 :: passenger as he was not having valid ticket at the time of alleged incident. The Tribunal relied on the decision rendered by the Delhi High Court in _**Shahajad & Others v. Union of India 1 ((2014) ACC 397**_ ) and also the decision rendered by the Karnataka High Court in _**Union of India v. Lakshmi II ((2014) ACC Kar)**_ and found that no document was produced by the applicants or any valid evidence was adduced by the applicants to show that the victim was having valid ticket at the time of alleged incident. 3. It is so unfortunate that the Railway Claims Tribunal, while passing the order dated 28.8.2014, has not looked into the legal position settled by this Court as early as in the year 2012. (See _**Union of India v. Parameswaranpillai and Another (2012 (4) KLJ 82 : 2012 (4) KLT SN 25, C.No.25)**_ , wherein it was held that “the fact that a passenger had purchased a ticket and is a “ _bona fide_ ” passenger is always to be presumed unless it is shown to be otherwise. Such ## **M.F.A.No.130 of 2014 (B)** :: 3 :: presumption would always swing in favour of the injured. If, unfortunately, the injured dies, such a presumption shall aid those entitled to compensation in that regard.”) 4. The High Court of Andhra Pradesh, on an earlier occasion, in _**Union of India v. Baburao Koddekar and another (AIR 2003 Andhra Pradesh 23),**_ had taken the view that it is upon the Railway to show that the deceased, who met with an accident and died due to the accident, was not having valid ticket and was not a _bona fide_ passenger. This Court in the decision in **Joji C. John v. Union of India (2002 (1) KLT 678)** had taken note of such an incident and found that merely because the victim lost the ticket during the accident by which she became unconscious, she cannot be labeled as not a _bona fide_ passenger. The Railway failed to prove that she was not a _bona fide_ passenger. 5. The very same view was earlier taken by the Supreme ## **M.F.A.No.130 of 2014 (B)** :: 4 :: Court in _**Thazhathe Purayil Sarabi v. Union of India (2009**_ ## _**(4) KLT 370 (SC)).**_ 6. The Apex Court in _**Union of India v. Prabhakaran Vijaya Kumar and others ((2008) 9 SCC 527),**_ has interpreted the application of Section 124A being a beneficial legislation and it was settled that, by interpreting such a legislation, an interpretation which would advance justice to the victim has to be adopted and it is always to be liberal so as to advance beneficial element engrafted under the provision. 7. We are also of the view that the initial burden to show that the victim was a _bona fide_ passenger is resting on the person who claims compensation, namely, the applicants or the victim, as the case may be. But when the incident was happened while he was a passenger in a train or when he attempted to entrain or alight from the train, the presumption is that he was having valid ticket unless the contrary is proved. If ## **M.F.A.No.130 of 2014 (B)** :: 5 :: he was found standing in the Railway Station or sitting in the Railway Station awaiting the train, the very same presumption is available unless the contrary is proved. Needless to say that the contrary should be proved by the Railway. There may be reason for losing the ticket when a victim sustained very serious injuries or dies in a railway accident. All these are overlooked by the Railway Claims Tribunal while passing the impugned order. 8. The learned counsel for the appellants also relied on the DRM's report so as to advance and support their case regarding non-availability/non-seizure of a valid ticket from the deceased. The report of the DRM cannot be accepted in evidence unless the person who prepared it has been examined to test the veracity and correctness of the findings rendered therein. 9. Another argument was also advanced by the learned ## **M.F.A.No.130 of 2014 (B)** :: 6 :: counsel for the respondent stating that in the FIR and the inquest report, the name of the deceased is stated as Rajan, but in the postmortem certificate, the name of the victim is stated as Sundaran. But the respondent did not have any case that the inquest report prepared is not with respect to the body in which postmortem was conducted and the postmortem certificate was drawn. The petition is filed showing the name of the deceased as Rajan @ Sundaran. The fact that the name of the deceased entered in the FIR and the inquest report as Rajan and in the postmortem report as Sundaran would clearly show that he was having two names, Rajan as well as Sundaran. We could not find any merit in the said submission made by the learned counsel appearing for the respondent. 10. Hence, the order passed by the Railway Claims Tribunal overlooking the settled position of law is liable to be interfered with and we do so. The order of the Tribunal is hereby set aside. The matter is remanded back to the ## **M.F.A.No.130 of 2014 (B)** :: 7 :: Tribunal for proper adjudication of the matter in the light of the abovesaid discussions and in accordance with the law in force. The parties shall appear before the Railway Claims Tribunal on 16.8.2017 or any other date that may be notified by the Tribunal in that behalf. There will be a further direction to the Railway Claims Tribunal to expedite the disposal of the application, positively within a period of six months from today, being the matter related to the year 2014. In the result, the Appeal is allowed. No order as to costs. ## **K. Harilal Judge** **P. Somarajan Judge** ahz/