Union of India represented by General Manager, Southern Railways, Chennai v. Nafeesa @ Nafeesa Kutty, Mohammed Nazeeb, Mohammed Nabeel (minor), Rifa Mol (minor), Amana Mol (minor) (MFA No. 25 of 2011)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **TUESDAY, THE 22ND DAY OF SEPTEMBER 2020 / 31ST BHADRA, 1942** ## **MFA.No.25 OF 2011** ## **O.A.NO.OA(IIu)/ERS/2009/0118 OF RAILWAY CLAIMS TRIBUNAL, ERNAKULAM BENCH** ## **APPELLANT/RESPONDENT:** **UNION OF INDIA REPRESENTED BY GENERAL MANAGER,SOUTHERN RAILWAYS,CHENNAI.** **BY ADVS. SRI.N.B.SUNIL NATH,SC, RAILWAYS SRI.P.P.M.NAJEEB KHAN, SC, RAILWAYS** ## **RESPONDENTS/APPELLANTS:** |**1**|**NAFEESA @ NAFEESA KUTTY,**| |---|---| ||**W/O.LATE IBRAHIM, RESIDING AT THEKKIL HOUSE,**| ||**THIRUNAVAYA P.O.,**| ||**MALAPPURAM DISTRICT, KERALA PIN-676 301.**| |**2**|**MOHAMMED NAZEEB,**| ||**S/O.IBRAHIM**| ||**RESIDING AT THEKKIL HOUSE, THIRUNAVAYA P.O.,**| ||**MALAPPURAM DISTRICT, KERALA PIN-676 301.**| |**3**|**MOHAMMED NABEEL (MINOR),**| ||**S/O.IBRAHIM**| ||**RESIDING AT THEKKIL HOUSE, THIRUNAVAYA P.O.,**| ||**MALAPPURAM DISTRICT, KERALA PIN-676 301.**| |**4**|**RIFA MOL (MINOR),**| ||**D/O.IBRAHIM**| ||**RESIDING AT THEKKIL HOUSE, THIRUNAVAYA P.O.,**| ||**MALAPPURAM DISTRICT, KERALA PIN-676 301.**| ## **M.F.A.No.25 of 2011** **:-2-:** **5 AMANA MOL (MINOR), D/O.IBRAHIM RESIDING AT THEKKIL HOUSE, THIRUNAVAYA P.O., MALAPPURAM DISTRICT, KERALA PIN-676 301.** **R1-3 BY ADV. SRI.M.S.VINEETH** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **M.F.A.No.25 of 2011** ## **:-3-:** ## **Dated this the 22[nd] day of September, 2020** ## **J U D G M E N T** A claim petition filed under Section 16 of the Railway Claims Tribunal Act, 1987 (for short, 'the Tribunal Act') was allowed by the Railway Claims Tribunal, Ernakulam Bench, awarding an amount of Rs.4 lakhs with interest to the legal heirs of the deceased Ibrahim by order dated 22.1.2010. The order is challenged by the Union of India in this appeal. 2. According to the respondents, the deceased Sri.Ibrahim who was aged 43 years died while he was boarding a passenger Train No.612 on 3.4.2007 from the platform of Thirunavaya Railway Station at 6.30 a.m. He fell down from the train and was run over and instantaneously died on the spot. The respondents who are the widow and children of the deceased contended before the Tribunal that the ## **M.F.A.No.25 of 2011** ## **:-4-:** death arose out of untoward incident within the meaning of Section 123(c) of the Railway's Act, 1989 and were therefore entitled to compensation of an amount of Rs.5 lakhs. 3. The Union Government representing Southern Railway, Chennai, contended that the deceased was not a passenger of the train at all. He had not purchased ticket from the railway. It was contended that when he came to the counter for purchase of ticket, it was not issued since departure of train was already announced. The accident occurred when he attempted to board the moving train from the platform and since it was a self invited accident, the respondents are not entitled to claim compensation. 4. The Tribunal examined the widow of the deceased as PW1 and a shopkeeper running his business close to railway station as PW2. Exts.A1 ## **M.F.A.No.25 of 2011** **:-5-:** to A8 were tendered in evidence on the side of the respondents. RW1, the Station Master was examined and Exts.R1 to R4 were tendered on the side of the appellant. 5. The respondents could not produce the ticket alleged to have been purchased by the deceased. PW1 explained that it was lost during the incident and it was incapable of being produced. She denied that her husband tried to make entry into the moving train. The fact that Sri.Ibrahim died while boarding the train is not disputed by the Railway. Its contention is that what the deceased tried was to embark upon a moving train and further he was not a passenger entitled to travel since he had not purchased a valid ticket from the railway. 6. The learned Tribunal did not accept the contention of the appellant, since RW1 Station ## **M.F.A.No.25 of 2011** ## **:-6-:** Master was not a person who was present in the premises at the time of accident. It also took the view that for mere non production of ticket, a valid claim for compensation cannot be denied. It was also found that there was nothing to bring out that the accident was while a moving train was boarded. It also took an extreme view that the contention of the respondent that the deceased did not take ticket from the Station is not a ground to deny compensation to the dependents when fatal incident is in question. 7. The learned counsel for the appellant contended that the finding of the learned Tribunal is vitiated by misleading of evidence as well as wrong application of law. My attention was drawn to definition of 'passenger' in Section 124(a) of the Railway's Act, 1987. 'Passenger' is a person who has purchased a valid ticket for travelling in a ## **M.F.A.No.25 of 2011** **:-7-:** train. It was also submitted that entry into a moving train by itself is a criminal offence and an incident arising out of such a criminal act is excluded from the purview of untoward incident by Section 124(a) of the Railway's Act. 8. But on re-appreciation of evidence, I do not find any justifiable reason to interfere with the findings of the learned Tribunal. PW2 shopkeeper's evidence is highly relevant and there is no reason why it should be rejected. He said that he along with the deceased came to the railway counter for purchasing ticket and after getting a card ticket, the deceased kept it inside his pocket. On the basis of hearsay information, the widow of the deceased also corroborated this evidence. The contrary evidence was sought to be adduced by RW1, who did not have knowledge about PW2's presence in the Station counter along with ## **M.F.A.No.25 of 2011** ## **:-8-:** the deceased. He could not have therefore denied the veracity of the testimony given by PW2. Therefore, I agree with the finding of the learned Tribunal that the deceased had a valid ticket with him at the time when he was trying to board the train. 9. The contention that the incident occurred while the train was moving, was not established in this case. Exts.R1 to R4 documents contain the information collected from the sources that accident was at the time while the train was moving. But no eye witness was cited by the appellant to prove the source of information. RW1 Station Master was admittedly not an eye witness to the accident. In the backdrop of this evidence, the finding of the Tribunal on evidence and law cannot be assiled as being erroneous. The learned counsel for the respondents cited **Union of India v.** ## **M.F.A.No.25 of 2011** ## **:-9-:** **Leelamma (2009(1) KLT 914)** and **Joji C.John v. Union** **of India (2002(1) KLT 678)** to support the contention that on the mere ground of non production of ticket purchased by the passenger, the claim for compensation cannot be refused by the Tribunal. The legal position canvassed squarely applies to the facts of this case. This being the position, I hold that there is no valid reason to interfere with the findings as well as the consequential award passed by the learned Railway Tribunal. It requires only to be confirmed. In the result, the appeal fails and it is dismissed. All pending interlocutory applications are closed. Sd/- **T.V.ANILKUMAR JUDGE** ami/