Sindhu T.K. and others v. Union of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **FRIDAY, THE 04TH DAY OF DECEMBER 2020/13TH AGRAHAYANA, 1942** ## **MFA.No.2 OF 2016** **AGAINST THE JUDGMENT IN OA(llu)/ERS/2014/0098 OF RAILWAY CLAIMS TRIBUNAL, ERNAKULAM BENCH** ## **APPELLANTS/APPLICANTS:** - **1 SINDHU T.K., AGED 41 YEARS W/O. LATE ANILKUMAR T.K., THUNNARUKANDI, CHETTIPADI P.O., NEDUVA VILLAGE, THIRURANGADI TALUK, MALAPPURAM - 676 319.** - **2 GANGOTHRI T.K., AGED 11 YEARS (MINOR) D/O. LATE ANILKUMAR T.K., THUNNARUKANDI, CHETTIPADI P.O., NEDUVA VILLAGE, THIRURANGADI TALUK, MALAPPURAM - 676 319.** - **3 ABHISHEK T.K., AGED 9 YEARS (MINOR) S/O. LATE ANILKUMAR T.K., THUNNARUKANDI, CHETTIPADI P.O., NEDUVA VILLAGE, THIRURANGADI TALUK, MALAPPURAM - 676 319. (APPELLANTS 2 AND 3 ARE MINORS REPRESENTED BY THEIR MOTHER THE IST APPELLANT AS NEXT FRIEND).** - **4 DEVAKY T.K., AGED 68 YEARS W/O. KUTTYAPPU, THUNNARUKANDI, CHETTIPADI P.O., NEDUVA VILLAGE, THIRURANGADI TALUK, MALAPPURAM - 676 319. *(DIED) (IT IS RECORDED THAT THE APPELLANT NO.4 DIED ON 11.6.2016, VIDE ORDER DATED 4.12.2020, VIDE MEMO DATED 2.12.2020.)** **BY ADVS. SRI.MARTIN G.THOTTAN SMT.LAKSHMI RAJAN** ## **RESPONDENT/RESPONDENT:** **UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI-600003. BY SRI.JOHN MATHEW,SC, RAILWAYS BY ADV. SRI.JOHN MATHEWSC RAILWAYS BY SRI.S.ANANTHAKRISHNAN, SC, RAILWAYS** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03-12-2020, THE COURT ON 04-12-2020 DELIVERED THE FOLLOWING:** **M.F.A.No.2 of 2016** ## **:-2-:** ## **Dated this the 4[th] day of December, 2020** ## **J U D G M E N T** O.A.(llu)/ERS/2014/0098 filed by the dependents of deceased Anil Kumar claiming compensation was dismissed by the Railway Claims Tribunal, Ernakulam Bench, by the impugned order dated 9.9.2015. The order is challenged by the dependents in this appeal. 2. During the pendency of the appeal, the fourth appellant, mother of the deceased, passed away. Appellants 1 to 3 prosecuted the appeal as the surviving dependents of deceased. **==> picture [402 x 10] intentionally omitted <==** deceased Anil Kumar was trying to board Kannur- Coimbatore passenger train from platform No.II of Parappanangadi Railway Station. The averment in the Original Application is that he was holding a valid ticket and while attempting to board the moving ## **M.F.A.No.2 of 2016** ## **:-3-:** train, he slipped into the railway track and was run over by the same train. He died instantaneously. 4. The respondent railway disowned the liability for compensation contending that the accident was due to carelessness and negligence of the deceased himself. It was pointed out that his act of attempting to get into the moving train is a criminal offence made punishable under Section 156 of the Railway Claims Tribunal Act, 1987 (for short, 'the Act') and therefore itself, the untoward incident cannot be treated as an accident within the meaning of Section 123-A of Chapter XIII of the Act. 5. The Tribunal admitted Exts.A1 to A7 in evidence on the side of the applicants/dependents and examined one of the applicants as witness on their side. The respondent produced Exts.R1 to R11 ## **M.F.A.No.2 of 2016** ## **:-4-:** and gave oral evidence examining Rws.1 and 2 on its side. 6. After considering the entire materials on record, the Tribunal held that the deceased was a _bona fide_ passenger notwithstanding the fact that he committed a dangerous act of boarding a moving train. It refused to award any compensation to the claimants holding that a victim cannot claim compensation for injuries or death in an accident which was contributed by himself. 7. The finding of the Tribunal is seriously assailed in appeal. 8. I heard the learned counsel appearing on both sides. 9. According to the Tribunal, even though provisions relating to payment of compensation in the Act were enacted for the benefit of the victims, they cannot be stretched too much to ## **M.F.A.No.2 of 2016** ## **:-5-:** reward a person who acted carelessly, unwisely and improvidently. In this respect, a decision of this Court reported in **Joseph P.T. @Thomas Jacob v. Union of India (2013(4) KHC 297)** was followed. 10. Learned counsel for the appellants argued that the legal position relied on by the Tribunal no longer survives in the light of the decision of the Honourable Apex Court in **Union of India v.** **Prabhakaran Vijaya Kumar (2008(2) KLT 700)** in which it was held that liability of railway is based on no fault/strict liability notwithstanding the fact that the passenger might have acted negligently. 11. The clear finding of the Tribunal is that the accident occurred at a time when the deceased Anil Kumar made an attempt to embark upon a moving train. Notwithstanding the conduct of the deceased being negligent also, in view of the legal position laid down by the Honourable Apex court, the ## **M.F.A.No.2 of 2016** ## **:-6-:** dependents are entitled to compensation under law. Therefore, the finding of the Tribunal and the consequential dismissal of O.A.(llu)/ERS/2014/0098 are liable to be interfered with and set aside as unsustainable. I do so. 12. Then arises the question as to the amount of compensation to which appellants 1 to 3 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 (for short, 'the Rules') was amended on 1.1.2017 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 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)]** ## **M.F.A.No.2 of 2016** ## **:-7-:** 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 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 ## **M.F.A.No.2 of 2016** ## **:-8-:** 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.” 13. In the instant case, the accident occurred on 5.6.2014 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 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** ## **M.F.A.No.2 of 2016** ## **:-9-:** case. In the result, the appeal is allowed and the impugned judgment dated 9.9.2015 of Railway Claims Tribunal, Ernakulam Bench, is hereby set aside. O.A.(llu)/ERS/2014/0098 is allowed directing the respondent to pay an amount of Rs.8 lakhs towards compensation to appellants 1 to 3 within a period of one month from today. Appellants 2 and 3 being minors, 1/3[rd] share each in the names of the minors shall be paid in fixed deposit before any nationalised bank till the attainment of their majority. The first appellant, being the guardian of minors, will be entitled to draw interest from the deposit amount. All pending interlocutory applications are closed. Sd/- **T.V.ANILKUMAR JUDGE** ami/