Sumy E.K. and others v. Union of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **TUESDAY, THE 29TH DAY OF SEPTEMBER 2020 / 7TH ASWINA, 1942** ## **MFA.No.145 OF 2018** ## **AGAINST THE ORDER IN OA(llu)/ERS/50/2017 OF RAILWAY CLAIMS TRIBUNAL, ERNAKULAM BENCH** ## **- APPELLANTS/APPLICANT NOS.1 3:** **1 SUMY E.K., AGED 35 YEARS, W/O LATE ANIL.K.K, KARIYATHPARAMBIL.568, KIZHAKKUMPURAM, CHENNAMANGALAM.P.O, PARAVUR TALUK, ERNAKULAM DISTRICT. NOW RESIDING AT EDAMANA HOUSE, PULIYANAM.P.O, ANGAMALY VAZHI, PARAKKADAVU VILLAGE, ALUVA, PIN-683 572. 2 AVANEETH.K.A.,S/O LATE ANIL.K.K, MINOR AGED 12 YEARS, KARIYATHPARAMBIL.568, KIZHAKKUMPURAM, CHENNAMANGALAM.P.O, PARAVUR TALUK, ERNAKULAM DISTRICT. NOW RESIDING AT EDAMANA HOUSE, PULIYANAM.P.O, ANGAMALY VAZHI, PARAKKADAVU VILLAGE, ALUVA TALUK, PIN-683 572. (REPRESENTED BY HIS MOTHER AND LEGAL GUARDIAN, SUMY E.K., THE 1ST APPELLANT HEREIN) 3 NAVAMI ANIL,D/O LATE ANIL.K.K, MINOR, AGED 9 YEARS, KARIYATHPARAMBIL.568, KIZHAKKUMPURAM, CHENNAMANGALAM.P.O, PARAVUR TALUK, ERNAKULAM DISTRICT. NOW RESIDING AT EDAMANA HOUSE, PULIYANAM.P.O, ANGAMALY VAZHI, PARAKKADAVU VILLAGE, ALUVA TALUK, PIN-683 572. (REPRESENTED BY HER MOTHER AND LEGAL GUARDIAN SUMY E.K., THE 1ST APPELLANT HEREIN) BY ADVS. SRI.ALEXANDER JOSEPH SRI.M.V.SABU SMT.TERESA C. JOSEPH SMT.AKHILASREE BHASKARAN** ## **RESPONDENT/RESPONDENT:** **UNION OF INDIA,REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI-600020.** **BY SRI.S.PRASHANTH, SC, RAILWAYS** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 29.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.F.A.No.145 of 2018** ## **:-2-:** **Dated this the 29[th] day of September, 2020** ## **J U D G M E N T** The claim petition filed by the widow and children of deceased Sri.Anil K.K. for compensation before the Railway Claims Tribunal, Ernakulam Bench, was dismissed by order dated 30.5.2018. The impugned order of dismissal is challenged in this appeal. 2. The allegation against the respondent/ Southern Railway is that on 7.10.2016, the deceased was travelling in Hima Sagar Express Train No.16317 from Thiruvananthapuram to Ernakulam and while the train reached at Kochuveli Railway Station, due to a sudden jerk, the deceased accidentally fell down from the running train and sustained injuries. He succumbed to the injuries then and there itself. His dead body was recovered from the railway track and on the basis of information, the local Petta ## **M.F.A.No.145 of 2018** ## **:-3-:** Police Station registered crime No.1318/2016. 3. The appellants claimed the deceased to be a bona fide passenger of the train which did not find favour with the Claims Tribunal. It, on the other hand, accepted the contention of the respondent that the accident happened when a light engine hit the deceased while he was crossing the track on the day. It was contended that he was a trespasser upon the railway property. He was neither a traveller nor did the death arise out of the untoward incident as defined by the Railways Act, 1989 (for short, 'the Act'). 4. On the side of the appellants, the widow of the deceased was examined as AW1. On the side of the respondents, loco pilot, assistant loco pilot and Station Superintendent were respectively examined as Rws.1 to 3. The witnesses proved DRM enquiry report as well as the final report prepared ## **M.F.A.No.145 of 2018** ## **:-4-:** by the police which stated that the accident was in the course of the deceased crossing the railway track and he was not a passenger in the train at all. 5. The learned Tribunal after appreciating the evidence on record held that the appellants failed to prove that the deceased was a passenger in the train. It gave emphasis to the fact that train ticket for the alleged travelling was also not produced. Thus holding that the death was not proved to have arisen out of the untoward incident, the claim for compensation was refused. 6. I heard the learned counsel for the appellants as well as the respondent. The learned counsel for the appellants assailed the findings of the learned Tribunal that the deceased was not a bona fide passenger of the train. He took my attention to the evidence and documents produced in ## **M.F.A.No.145 of 2018** ## **:-5-:** this case. 7. According to the learned counsel for the appellants, the mere non production of tickets is no legal ground to hold that the deceased was not a passenger in the train. It was contended that there is sufficient evidence to prove that the deceased was a traveller of the train and when there was initial evidence adduced by AW1, then the burden lay upon the railway to show that the truth was to the contrary. The learned counsel contended that Railways Act and the Railway Claims Tribunal, are beneficial legislations enacted to protect the interests of the passengers and therefore a liberal view ought to have been taken by the learned Tribunal in the matter. It was also contended that there was delay in conduct of enquiry immediately after the incident and therefore itself the conclusion of the learned Tribunal based on the ## **M.F.A.No.145 of 2018** ## **:-6-:** final report and DRM report was erroneous. 8. The learned counsel relied on the decisions reported in **Union of India v. Rina Devi (2018(2) KHC 920)** , **Vijayalakshmi S. & ors. v. Union of India (2019 KHC 4287)** , **Simranjeet Kaur v. Union of India (2020 KHC 2706)** and **Bhagwani Giri v. Union of India (2005 KHC 6002)** to contend for the position that non-production of ticket by itself is no ground for disallowing compensation and further once the claimant has filed affidavit proving that the deceased or the injured, as the case may be, was the passenger of the train, the burden of proof shifted to the railway. To substantiate the view that a liberal view ought to be taken in favour of the bona fide passenger, decision in **Babu K. & anr.** **v. Union of India (2017(4) KHC 137)** was relied on. In order to support the argument that delay in the authorities holding enquiry as to the cause for the ## **M.F.A.No.145 of 2018** ## **:-7-:** accident is a circumstance favouring the claimant's case, a decision in **Kalandi Charan Sahoo and anr.** ## **v. General Manager, South-East Central Railway** **(2018 KHC 7424)** was relied on. 9. It is no doubt true that non production of railway ticket by itself will not disentitle a bona fide passenger to claim compensation. That however does not mean that a person who is not a passenger in a train is entitled to claim compensation under the Act. The decisions cited before me are all distinguisable on facts and no comparison for the facts of the case on hand. A passenger under the Act means a person travelling in a train upon a valid ticket or a pass. In many a case, a passenger may not be in a position to produce the ticket in support of his claim for compensation due to variety of reasons and one of them being, loss of ticket from his personal custody. Once this could ## **M.F.A.No.145 of 2018** **:-8-:** be shown by filing an affidavit or adducing evidence, certainly the burden of proof will shift to the respondent who opposes the claim. But that is not the factual position which transpired in the present case. 10. In this case affidavit was filed by AW1/the widow of the deceased. She conceded that she has no direct knowledge of the incident and her information was based on what she heard from others. Since her evidence is based on hearsay, it has no value in the eyes of law. She could not summon and examine any witness who could have seen the deceased board the train or purchase the train ticket. No evidence was brought forth to prove that he was inside the moving train at the time of the accident. On the other hand, the final report prepared by the police after investigation shows that the deceased was crossing the track and a ## **M.F.A.No.145 of 2018** ## **:-9-:** light engine struck him down causing his death. There is high probability for the conclusion arrived at in the final report being true. 11. The learned Tribunal took note of the fact that even though currency notes, ATM cards, driving licence and such other things kept in the purse could be recovered from the dead body, the ticket was not recovered presumably because he had not purchased the ticket. The learned counsel for the appellants submitted that the ticket might have been kept in the shirt and after a portion of the shirt being cut and removed, it was not returned. I find my way difficult to agree to this argument because whatever available with the deceased at the time of accident were recovered from the body. Further as opined by the officials in their reports that having regard to the distance from the railway track from where the body was recovered, the ## **M.F.A.No.145 of 2018** **==> picture [44 x 9] intentionally omitted <==** accident in all probability might have been at a time when the deceased crossed the track. I therefore, do not find any reason to disagree with the finding of the learned Tribunal that appellant failed to prove the deceased as a bona fide passenger. The impugned order is not capable of being interfered with on facts, evidence and law. **==> picture [402 x 12] intentionally omitted <==** accordingly dismissed. All pending interlocutory applications are closed. Sd/- ## **T.V.ANILKUMAR JUDGE** ami/