Sunitha C., Drisya Raj M.V. and Syam Raj M.V. (minor) vs Union of India

**'CR'** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **& THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 27TH DAY OF JULY 2016/5TH SRAVANA, 1938** **MFA.No. 44 of 2015 () ----------------------** ## **AGAINST THE ORDER/JUDGMENT IN OA(II U)ERS/2013 0063 of RAILWAY CLAIMS TRIBUNAL,ERNAKULAM DATED 27-03-2014** **APPELLANTS/APPLICANTS:** **-----------------------** **1. SUNITHA.C RESIDING AT MUTHALA VEETTIL HOUSE, SHYAM SREE, POOTHEN VALAPPU, CHELARI, MALAPPURAM, KERALA** **2. DRISYA RAJ M.V. RESIDING AT MUTHALA VEETTIL HOUSE, SHYAM SREE, POOTHEN VALAPPU, CHELARI, MALAPPURAM, KERALA.** **3. SYAM RAJ M.V. RESIDING AT MUTHALA VEETTIL HOUSE, SHYAM SREE, POOTHEN VALAPPU, CHELARI, MALAPPURAM, KERALA.(MINOR REPRESENTED BY THE 1ST APPELLANT MOTHER).** **BY ADV. SRI.S.SAJITH** ## **RESPONDENT/RESPONDENT:** **----------------------** **UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI, PIN-600 001.** **BY ADV. SRI.K.JAYAKUMAR SR.(AMICUS CURIAE) R1 BY SRI.C.S.DIAS,SC, RAILWAYS** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14-01-2016, THE COURT ON 27-07-2016 DELIVERED THE FOLLOWING:** **'CR'** ## **P.N.RAVINDRAN & ANU SIVARAMAN, JJ.** ## **= = = = = = = = = = = = = M.F.A.No.44 of 2015 = = = = = = = = = = = = = = Dated this the 27[th] day of July, 2016 JUDGMENT** ## **Anu Sivaraman, J.** The applicants before the Railways Claims Tribunal, Ernakulam Bench in Original Application No.63 of 2013 are the appellants herein. They are the widow, daughter and minor son of Babu Rajan, aged 43 years who had died in an untoward incident which occurred on 21.01.2013. In the claim petition, the appellants had averred that late Babu Rajan boarded Train No.12082, Jan Sathabdi Express from Kollam Junction at 15.15 hrs on 21.01.2013, that he had purchased a ticket, which was lost in the accident, for travel to Calicut, that at about 10 PM, while he was washing his hands after going to the toilet, he was thrown out of the train due to a violent jerking and in that accident, he sustained fatal injuries. It was stated that he was working abroad and had come home on leave. The appellants had in the application prayed for award of the sum of Rs.6,00,000/- as compensation. 2. The respondent filed a written statement contending that a passenger had been reported to have fallen from Train No.12082 M.F.A.No.44 of 2015 **2** between Platform No.1 of Parappanangadi Railway station and LC gate at Km 639/9, at about 22 hrs on 21.01.2013, that he was found dead by the Station Master and the matter was reported to the local police. It was also stated that ticket No.793712954 which was purchased for the journey from Kayamkulam to Tirur was recovered from the body of the victim. Since the body was found near Parappanangadi railway station, which comes after Tirur, the respondent contended that the deceased might have jumped or detrained from the moving train. It is stated that “this adventurous act can only be described as self-inflicted injury and the railways cannot be held liable for self-inflicted injury under section 124A(b) of the Railways Act, 1989”. 3. Before the Railway Claims Tribunal, Exts. A1 to A5 were produced and marked on the side of the claimants and Ext.R1 report of the DRM was produced on the side of the respondents. After considering the pleadings and the materials on record, the Tribunal came to the conclusion that though the deceased had a valid ticket to travel from Kayamkulam to Tirur, he was not a passenger as defined under the Railways Act, 1989 at the time of his fall from the train as Parappangadi comes after Tirur and before Kozhikode. It was further held that the victim being a mature adult, his detraining from the train M.F.A.No.44 of 2015 **3** when it slowed down on account of the imposition of a caution order amounts to criminal negligence and is exempted under the proviso to section 124A of the Railways Act, 1989. The application for compensation was therefore dismissed holding that the railways had no liability to compensate the claimants. 4. We heard Sri.S.Sajith, learned counsel appearing for the appellants and Sri.John Mathew, learned standing counsel appearing for the Railways. We also had the assistance of Sri.K.Jayakumar, learned Senior Advocate, who was appointed by us as amicus curiae. 5. Sections 124 and 124A of the Railways Act, 1989 which are relevant for consideration of the question raised before us with regard to the liability of the railways to compensate the claimants for the death which had admittedly occurred on 21.01.2013 are extracted below:- ” **124. Extent of liability.-** When in the course of working a railway, an accident occurs, being either a collision between trains of which one is a train carrying passengers or the derailment of or other accident to a train or any part of a train carrying passengers, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or has suffered a loss to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything M.F.A.No.44 of 2015 **4** contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of passenger dying as a result of such accident, and for personal injury and loss, destruction, damage or deterioration of goods owned by the passenger and accompanying him in his compartment or on the train, sustained as a result of such accident. **Explanation.-** For the, purposes of this section "passenger" includes a railway servant on duty. **“124A. Compensation on account of untoward incidents.-** When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident. **Provided** that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to- (a) suicide or attempted suicide by him; (b) self-inflicted injury; (c) his own criminal act; (d) any act committed by him in a state of intoxication or insanity; (e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident. **Explanation.-** For the purposes of this section, "passenger" includes- (i) a railway servant on duty; and (ii)a person who has purchased a valid ticket for traveling, by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.] “ M.F.A.No.44 of 2015 **5** ## 6. The term 'untoward incident' is defined in section 123(c) of the Railways Act as follows:- “Section 123(c) "untoward incident" means- (1) (i) the commission of a terrorist act within the meaning of sub-section (1) of section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or (ii) the making of a violent attack or the commission of robbery or dacoity; or (iii) the indulging in rioting, shoot-out or arson, by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station; or (2) the accidental falling of any passenger from a train carrying passengers.] “ ## 7. Section 55 of the Railways Act provides as follows:- ## “ **55. Prohibition against travelling without pass or ticket.** (1) No person shall enter or remain in any carriage on a railway for the purpose of traveling therein as a passenger unless he has with him a proper pass or ticket or obtained permission of a railway servant authorized in this behalf for such travel. (2) A person obtaining permission under sub-section (1) shall ordinarily get a certificate from the railway servant referred to in that sub-section that he has been permitted to travel in such carriage on condition that he subsequently pays the fare payable for the distance to be travelled”. 8. Section 137 of the Railways Act, 1989 provides that if any person, with an intent to defraud a railway administration enters or remains in any carriage on a railway or travels in a train in M.F.A.No.44 of 2015 **6** contravention of section 55, he shall be punishable with imprisonment for a term which may extent to six months, or with fine, or with both. 9. Section 138(2) of the Railways Act, 1989 also provides that if any passenger travels in a train in contravention of section 55, he shall be liable to pay the excess charge as provided in the Act. Section 138(2) of the Act reads as follows: “Section 138(2): If any passenger,_ (a) travels or attempts to travel in or on a carriage, or by a train, of a higher class than that for which he has obtained a pass or purchased a ticket; or (b) travels in or on a carriage beyond the place authorized by his pass or ticket, he shall be liable to pay, on the demand of any railway servant authorized in this behalf, any difference between the fare paid by him and the fare payable in respect of the journey he has made and the excess charge referred to in sub-section.” 10.We had by order dated 25.06.2015, appointed Sri.K.Jayakumar, learned Senior Advocate of this Court as Amicus Curiae to assist the court to decide the question raised before us. The learned Amicus Curiae has placed before us a decision of the Nagpur Bench of the High Court of Bombay in **Vaishali v. P.S.Sapkale** (First Appeal No.703 of 2006) wherein an almost identical case was considered. The claimant in that case was the wife of one Nitesh M.F.A.No.44 of 2015 **7** Pralhad Bhalerao who died on 29.04.2003. The deceased had been issued with a travel pass by the Railway Recruitment Board to travel by Train No.2105 from Mumbai to Bhusawal. He fell down from the train at Shegaon Railway Station which, according to the railways, was after Bhusawal and therefore he could not be considered as a bona fide passenger. It was also urged by the railways that the deceased was travelling in a casual, rash and negligent manner without taking adequate precaution which resulted in his fall from the train and it tantamounts to a self-inflicted injury. There were no eye witnesses to the incident. The High Court held relying on the decision of the Hon'ble the Supreme Court in **Union of India v. Prabhakaran Vijayakumar** [(2008) 9 SCC 527] that a welfare legislation has to be construed to enable claimants to get just and proper compensation. Relying on the decisions of the High Courts as well as the Apex Court and the provisions contained in Rule 231 of Appendix 4 of the Indian Railways Conference Association Coaching Tariff, it was held that the deceased was a bona fide passenger even beyond the point of his authorised journey and that no presumption could be drawn as to any criminal negligence on his part in the absence of concrete evidence in that regard. The rejection of the claim by the Tribunal was set aside M.F.A.No.44 of 2015 **8** and compensation was awarded to the appellants. 11. In First Appeal No.735 of 2010, the Bombay High Court held that the recovery of a ticket from the dead body would itself show that the deceased had boarded the train on an authorised ticket. In view of the finding that he had died as a result of a fall from the train, it was to be presumed that the fall was accidental, in the absence of evidence to show that it was a self-inflicted injury. In that case also the claimants were held entitled to compensation. In **Dwarka Mahto v. Union of India** (F.A.O.No.100 of 2011) by judgment dated 23.09.2011, the Delhi High Court held that in view of the fact that the passenger had a valid travel ticket, though there was failure to make an endorsement of break of journey, such technical violation would not result in the deceased losing the character of a bona fide passenger. Relying on the decision of the Hon'ble the Supreme Court in **Union of India v. Prabhakaran** (supra), it was held that Sections 123C and 124A of the Railways Act provide for a no fault liability and compensation should be awarded if an untoward incident, simpliciter is proved. Relying on the decision of the Apex Court in **Jamila v. Union of India** (2010(12) SCC 443) it was held that even if there is negligence, yet there still is an untoward incident entitling M.F.A.No.44 of 2015 **9** compensation, unless it is proved that the negligence is a criminal negligence involving self-inflicted injuries. 12. A Division Bench of this court has in **Union of India v. Parameswaran Pillai and another** (2012 (4) ILR 1) held that when a court or tribunal is discharging functions under a social welfare legislation, the adjudicatory body should regulate its procedure so as to provide succor to the beneficiaries of that statute. It was also held that interest is to be paid at the rate of 9% per annum from the date of the claim petition and not from the date of default. The decisions of the Hon'ble the Supreme Court in **Thazthe Purayil Sarabi v. Union of India** [2009 (4) KLT 370 SC], **Union of India v. Prabhakaran** (supra) and **Rathi Menon v. Union of India** [2001 (2) KLT 12] and of this court in **Nalini v. Union of India** [2008(3) KLT 17] and **Abdul Kareem v. Union of India** [2008(3) ILR 127 Kerala] were also relied on. 13. Learned counsel for the appellants also relied on the decisions in **Sakhia Naik and another v. Union of India** [AIR 2005 Orissa 169], **Union of India v. Aggala Dilleswara Rao** [AIR 2005 Andra Pradesh 444], **Union of India v. Balak Ram Joshi and others** [2013 ACJ 727], **Joji C John v. Union of India** [2002(1) KLT 678], **Narain** M.F.A.No.44 of 2015 **10** ## **v. Rex** [AIR 1950 Allahabad 37], **Jayalakshmi and others v. Union** **of India** [2013 ACJ 1707]. It was contended that in the absence of clear and cogent evidence adduced by the railways to prove that the injury was self-inflicted or that there was criminal negligence on the part of the deceased, no such inference can be drawn to defeat the claims. It was also contended that the absence of a ticket can also not be a ground to defeat the claims if the fact of being a bona fide passenger is otherwise established. 14.Per contra, it was contended by the learned counsel appearing for the railways that the railways would be liable to pay compensation only in cases of bona fide passengers who become the victims of untoward incidents. It was contended that to be a bona fide passenger the deceased should have a valid ticket to travel upto the point from which he suffered the fall and that in the absence of such a ticket, his travel becomes unauthorised and he can no more be considered as a bona fide passenger. It was further contended that a person who intentionally jumps off a moving train and suffers injuries on account of his own criminal negligence would not be entitled to the compensation due for death or injury on account of an untoward incident. It was contended that proviso to section 124A of the Act M.F.A.No.44 of 2015 **11** specifically excludes self-inflicted injuries and acts of criminal negligence and therefore the appellants are not entitled for compensation. 15.It is the further case of the learned counsel for the respondent that it had succeeded in proving before the Tribunal that there was a caution order in force at the Parappanagadi Railway Station on the date of the untoward incident and that the train would have had to slow down considerably on reaching Parappanagadi. Referring to the case of the claimants that the deceased was thrown out of the train due to its violent movement, it was contended that the case set out is therefore rendered improbable, if not totally impossible. It was urged that since the case of the claimants as to how the incident occurred stands disproved, the Tribunal was perfectly justified in rejecting the claim put forth by the appellants. It was also pointed out that since there was no material to show that the journey beyond Tirur was not intentional, the deceased should be assumed to have continued his journey with an intention to defraud the railways. It was pointed out that if the travelling without a ticket was intentional and with the intention to defraud the railways, then the offender is liable to be penalised for such offence. Since the claimants have been unable M.F.A.No.44 of 2015 **12** to prove or even to set up a consistent case as to how the untoward incident occurred, the railways would have no liability to compensate them, it was urged. 16.Learned amicus curiae also brought to our notice the provisions of Rule 231 in Appendix IV to the Rules in the Railway's manual relating to coaching tariff to state that a passenger who unintentionally travels beyond the station for which he holds a ticket will be allowed to return to the station to which he was originally booked on the purchase of a fresh single journey ticket of any class provided he returns on the next passenger train available and does not, in the meanwhile leave the premises of the station to which he has overridden. In such circumstances, he will not be required to pay any excess fare or penalty for the distance overridden by him. Learned counsel appearing for the railways made available a copy of the coaching tariff prepared by the Indian Railway Conference Association containing general rules and taxes of conveyance and passenger luggage tariff. It is submitted by the learned counsel appearing for the railways that the rules in this manual are being followed by the railways in the matter of passenger tariff. We find that page 35 of the said manual which was made available to us contains the relevant M.F.A.No.44 of 2015 **13** rule. The said rule has also been relied on by the High Court of the Bombay in **Vaishali** (supra). The conclusion which is inescapable on a reading of sections 55, 123, 124, 124A and 138 of the Railways Act, 1989 and the provisions of the manual is that an unintentional overriding of the journey for which a ticket is purchased is an incident which can be corrected by payment of fine or the purchase of a ticket back to the original destination. 17.In the instant case, there are no eye witnesses to the incident. There is no material to hold that the deceased had any reason to jump off a moving train and to bring upon himself the fatal injuries suffered in this case. It is also not the case of the respondents that there was any attempt on the part of the deceased to commit suicide. It is also clear that an untoward incident as defined in the Railways Act had occurred in the instant case. Since Railway Claims Tribunals have been set up to consider cases of accidental death and injury in railway accidents, we are of the opinion as is fortified by the decisions of the Apex Court and the various High Courts including that of this court, that the endeavor of the Tribunals should not be to deny compensation to unfortunate victims. In the above view of the matter, we are of the opinion that the dismissal of M.F.A.No.44 of 2015 **14** the claim petition is completely unjustified. For the reasons stated above, we allow the appeal, set aside the impugned order and award to the claimants the sum of Rs.4,00,000/as compensation together with interest thereon at 9% per annum from the date of application till the date of realisation. The respondent railways shall deposit the said amount within a period of two months from the date of receipt of a copy of this judgment. Upon such deposit being made one third of the amount deposited shall be released to the first appellant, one third to the second appellant and the balance shall be kept in a fixed deposit in a nationalized bank for a period of three years in the name of the third appellant. Before parting with the case, we wish to place on record our appreciation of the assistance rendered by the learned amicus curiae as well as the learned counsel appearing for the parties. No costs. sd/- **P.N.Ravindran,Judge** sd/- **Anu Sivaraman,Judge** sj /True Copy/ P.A. to Judge 0