Sobhana Chandru & others v Union of India

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU FRIDAY, THE 4TH DAY OF NOVEMBER 2016/13TH KARTHIKA, 1938 MFA.No. 128 of 2013 () ----------------------- AGAINST THE ORDER/JUDGMENT IN O.A.( 15/2013 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM DATED 11-06-2013 APPELLANTS/APPLICANTS: --------------------- 1. SOBHANA CHANDRU, AGED 40 YEARS, W/O. LATE CHANDRAPPA JANGLI, MANNIL MEMURIYIL, VAYALATHARA P.O, RANNI, PATHANAMTHITTA - 689 672. 2. SUBHASH CHANDRU, AGED 18 YEARS, S/O. LATE CHANDRAPPA JANGLI, MANNIL MEMURIYIL, VAYALATHARA P.O, RANNI, PATHANAMTHITTA - 689 672. 3. SHILPA CHANDRU AGED 15 YEARS, D/O. LATE CHANDRAPPA JANGLI, MANNIL MEMURIYIL, VAYALATHARA P.O, RANNI, PATHANAMTHITTA - 689 672. (REPRESENTED BY THE FIRST APPELLANT) BY ADVS.SRI.V.JAYAPRADEEP SMT.V.V.RISANI RESPONDENT/RESPONDENT: --------------------- UNION OF INDIA, REPRESENTED BY THE GENERAL MANGER, SOUTHERN RAILWAYS, CHENNAI. R BY ADV. SRI.C.S.DIAS,SC, RAILWAYS THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A.(RAILWAY) No.128 OF 2013 ## APPENDIX APPELLANT'S EXHIBITS: ANNEXURE-A1 COPY OF THE ORDER OF THIS COURT DATED 27.9.2013. TRUE COPY P.S.TO JUDGE css/ **P.N.RAVINDRAN & DAMA SESHADRI NAIDU, JJ. -------------------------------------------------M.F.A.(Railway) No.128 of 2013 ---------------------------------------------------Dated this the 4[th] day of November, 2016** ## **JUDGMENT** ## _**P.N.Ravindran, J.**_ The appellants are the wife and children of Chandrappa Jangli. They moved the Railway Claims Tribunal, Ernakulam Bench by filing O.A.(Illu)/ERS/2013/0015, an application under Section 16 of the Railway Claims Tribunals Act, 1989 claiming the sum of `12,00,000 as compensation for the death of Chandrappa Jangli in an untoward incident, which according to them, took place in the night of 8.9.2012. By judgment delivered on 11.6.2013, the Railway Claims Tribunal dismissed the application. The brief facts of the case are as follows: 2. The appellants herein had, in the application filed by them before the Railway Claims Tribunal, averred that on 8.9.2012 the deceased along with his brother-in-law Madhu who was examined as PW2 attended the Ex-serviceman's conference held at Thrissur. It is further stated that for their return journey, M.F.A.(Railway) No.128 of 2013 2 they had purchased a joint journey ticket from Thrissur Railway Station at 22.29 hours on 8.9.2012 and boarded the KannurTrivandrum Express (Train No.16348) from Thrissur to Chengannur at 23 hours. They had further stated that due to the rush in the rear side of the general compartment in which Madhu was travelling, the deceased went to the front side of the compartment, fell down from the train and died on the way to the hospital. The applicants had also stated that after the co-passenger Madhu reached Chengannur Railway Station he waited for Chandrappa Jangli, but could not see him, that thereupon he contacted the Railway authorities and came to know that the dead body of an unidentified man is in the mortuary, that Madhu thereupon went over to Thrissur and identified the dead body as that of Chandrappa Jangli. It was on these averments that the appellants prayed for the award of the sum of `12,00,000 as compensation. 3. Before the Railway Claims Tribunal, the respondents filed a reply statement dated 13.3.2013 wherein he was averred as follows: M.F.A.(Railway) No.128 of 2013 3 “The respondent denies that the deceased died in an untoward incident. The respondent submits that the enquiry made at Trichur station reveals that at around 01.30 hours on 9.9.2012 it was reported by Shri.Sunil K.Jose, Loco Pilot of empty Goods wagon rake at Trichur that a dead body of a male aged about 40 years was found lying on the drainage at western side of the track at KM 32/400-500 between Trichur and Punkunnam. And the body was removed by the local police in an ambulance at around 02.30 hours.” 4. Shorn of details, the stand taken by the respondents before the Railway Claims Tribunal was that the body of Chandrappa Jangli was found lying on the drainage at the western side of the track at KM 32/400-500 between Trichur and Punkunnam at about 1.30 hours on 9.9.2012 and that the body was removed by the local police in an ambulance at about 2.30 hours. Referring to the fact that the body was found between Trichur and Punkunnam and not between Trichur and Chengannur which lies in a different direction, it was contended that the death of the victim occurred otherwise than by a fall from the train and therefore, it will not come under section 123 (c)(2) of the Railways Act, 1989. 5. Before the Railway Claims Tribunal, the wife of the M.F.A.(Railway) No.128 of 2013 4 deceased was examined as PW1 and his brother-in-law as PW2. The claimants also produced and marked Exhibits A1 to A8. On the side of the respondents, the Loco Pilot (Engine Driver) who gave information to the police about the fact that an unidentified body was lying by the side of the railway track at Trichur was examined as RW1. The respondents also produced and marked Exhibits R1 to R4. After considering the rival contentions, the Tribunal framed the following issues for trial. (1) Whether the deceased was a _bona fide_ passenger for his journey with a valid ticket in Kannur-Trivandrum Express from Trichur to Chengannur on 8.9.2012. (2) Whether the deceased met with an untoward incident as defined u/s.123(c) of the Railways Act? (3) Whether the respondent is exempted from payment of compensation U/s.124A(b) of the Railways Act? (4) Whether the applicants are the only dependants of the deceased and entitled to compensation? (5) To what relief if any the applicants are entitled to? 6. The Tribunal thereafter proceeded to enter a finding on issue No.1 that the victim was not a _bona fide_ passenger on Train No.16348 as pleaded. The Tribunal held relying on Ext.A3 journey ticket that it was purchased at 22.29 hours on 8.9.2012 and that by then, Train No.16348 had left Trichur station. Relying on Exts.R2 and R3 the M.F.A.(Railway) No.128 of 2013 5 Tribunal came to the conclusion that Train No.16348 reached Trichur station at 22.10 hrs. and left at 22.18 hrs. on 8.9.2012. The Tribunal thereafter considered the question whether the victim was involved in an untoward incident as defined in section 123(c)(2) of the Railways Act and held, relying on Ext.A4 report as also the police records including Ext.A1 FIR and Ext.A5 final report that as the body of the victim was found underneath the railway over bridge, the victim did not die in an untoward incident, but was hit by a train while crossing the railway track. In view of the said findings, the application for compensation was dismissed. Hence this appeal. 7. We heard Sri.Jayapradeep, learned counsel appearing for the appellants and Sri.C.S.Dias, learned counsel appearing for the respondent. Learned counsel for the appellants contended relying on the decision of this court in _**Jayalakshmi**_ v _**Union of India**_ (2011(2) KLT 1001) that having regard to the discrepancies in Ext.A1 FIR wherein it is stated that the over bridge underneath which the body was found lying is on the southern side of Thrissur Railway Station, the Divisional Railway Manager should have ordered a further enquiry in exercise of the powers conferred on him under the Railway Passengers (Manner of Investigation on Untoward Incidents) Rules, 2003. Learned counsel further contended that as the body of the victim was found M.F.A.(Railway) No.128 of 2013 6 lying by the side of the railway track and trains other than Train No.16348 had left Trichur Railway Station on that day itself towards Chengannur side, the Divisional Railway Manager had a duty to ascertain whether the victim was involved in an untoward incident while he was travelling in any other train. Per contra, Sri.C.S.Dias, learned counsel appearing for the respondents contended that Ext.A1 First Information statement and all other police records would indicate that the body of the victim was found lying by the side of a railway track underneath an over bridge towards Shornur side and not towards Ernakulam side and therefore, the case of the applicants that the victim was involved in an untoward incident cannot be believed. Learned counsel contended that having regard to the fact that the body was found lying underneath the over bridge which is towards Punkunnam side, by no stretch of imagination can it be said that he was involved in an untoward accident while he was on a journey from Trichur to Chengannur which is in the opposite direction. Learned counsel also contended that the appellants have no case that the police records do not reflect the true state of affairs and therefore, no interference is called for. 8. We have considered the submissions made at the Bar by learned counsel appearing on either side. We have also gone through M.F.A.(Railway) No.128 of 2013 7 the pleadings and the materials on record. The case set out by the applicants is that their predecessor in interest was involved in an untoward incident while he was travelling by Train No.16348 from Trichur to Chengannur. Train No.16348 left Trichur station at 10.18 p.m. on 8.9.2012. Exts.R2 and R3 established the said fact. The ticket produced by the applicants themselves disclose that it was purchased at 22.29 hours on 8.9.2012. Though learned counsel for the appellants contended that the time in the clock of the computer was not synchronous with the time of the clock kept in the station master's office and that explains the disparity, we are not persuaded to accept the said submission. First of all, no attempt was made by the appellants to prove the said fact. Secondly, apart from the _ipse dixit_ of the appellants' counsel, there is nothing to substantiate the said contention. Ext.A3 ticket would conclusively show that it was purchased after Train No.16348 left the station. There is also no evidence to show that it was purchased for travel by Train No.16348. Ext.A3 is an unreserved ticket. It would only show that it authorises two persons to travel from Trichur to Chengannur by second class. The case set out in the application for compensation is that the victim fell down from Train No.16348 after entering an unreserved compartment. The applicants had also stated that the untoward M.F.A.(Railway) No.128 of 2013 8 incident happened at Trichur Railway Station. The substance of the averments in the application is that the accident took place after the victim boarded Train No.16348, Kannur-Trivandrum Express Train for his journey from Trichur to Chengannur at 23 hours. In the light of the facts stated above, we are constrained to hold that no exception can be taken to the finding entered by the Tribunal that the case set out in the application cannot be believed and is highly improbable. 9. That apart, it has come out in evidence that the body of the victim was found lying by the side of the railway track in a direction opposite to the direction of the journey from Trichur to Chengannur, namely towards Punkunnam side. It is not in dispute that there is only one railway over bridge in the vicinity of Trichur station and that is towards Punkunnam side, in a direction opposite to the journey from Trichur to Chengannur. If that be so, the case set out by the applicants that the victim had fallen down from a moving train while he was travelling on that train along with his brother in law RW2 from Thrissur to Chengannur, cannot be believed. The documentary evidence on record would conclusively show that the victim was hit by a moving train while he was attempting to cross the tracks. In such circumstances, having regard to the definition of the term 'untoward incident' occurring in section 123(C)(2) of the Railway's M.F.A.(Railway) No.128 of 2013 9 Act, 1989, we find no reason or justification to interfere with the impugned judgment. The view taken by the Tribunal that the applicants have not made out a case warranting award of compensation cannot now, in our opinion, be said to be perverse, warranting interference by this court. The appeal fails and is accordingly dismissed. No costs. **Sd/- P.N.RAVINDRAN JUDGE** **sd/- DAMA SESHADRI NAIDU JUDGE** css **/ true copy** **p.s.to judge**