IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 8TH DAY OF JUNE 2017/18TH JYAISHTA, 1939
MFA.No. 152 of 2009 (F)
---------------------------------AGAINST THE JUDGMENT IN OA 25/2008 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM, DATED 19-02-2009
PETITIONER: -
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UNION OF INDIA, REPRESENTED BY GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI.
BY ADVS.SMT.A.RAJESWARI, SC, RAILWAYS SRI.P.A.AZIZ, SC, RAILWAYS
RESPONDENT : -
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K.SANILKUMAR, S/O.K.KUTTAN, SANILBHAVAN, VITHAYATHIL LANE, AMMANKOVIL ROAD, COCHIN - 35.
BY ADV. SRI.N.B.SUNIL NATH,SC, RAILWAYS
THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 01-06-2017, ALONG WITH MFA. 181/2009, THE COURT ON 08.06.2017 DELIVERED THE FOLLOWING:
MFA.No. 152 of 2009 (F)
## **APPENDIX**
## PETITIONER'S ANNEXURES :
ANNEXURE A1 : TRUE COPY OF THE ORIGINAL APPLICATION FILED BEFORE THE RAILWAY CLAIMS TRIBUNAL, ERNAKULAM BENCH. ANNEXURE A2 : TRUE COPY OF THE REPLY STATEMENT BY THE PETITIONER FILED BEFORE THE RAILWAY CLAIMS TRIBUNAL, ERNAKULAM BENCH.
RESPONDENT'S ANNEXURE : NIL.
// TRUE COPY //
P.A. TO JUDGE
DMR/-
## **K. HARILAL & P. SOMARAJAN, JJ.**
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M.F.A.No.152 of 2009 & M.F.A.No.181 of 2009 -----------------------------------------------Dated this the 8[th] day of June, 2017
## J U D G M E N T
## **P. Somarajan, J.**
The judgment dated 19.02.2009 in O.A.(IIu)No.25/2008 on the file of Railway Claims Tribunal, Ernakulam, is under challenge in these two appeals by the respective parties.
2. A compensation of Rs.80,000/- was awarded by the Railway Claims Tribunal on an application submitted under Section 16 of the Railway Claims Tribunal Act, 1987, by the petitioner. The claim was for an amount of Rs.4,00,000/- on account of injuries sustained by him due to his tripping over a broken slab and falling down on the 5[th] platform from the train while trying to entrain Ernakulam-Trivandrum Intercity Express at Ernakulam South Railway Station on 11.1.2008 at about 5.50 a.m. He had sustained displaced fracture on the patella (R) and abrasion over the right knee. He was admitted in Unity Hospital, Karunagappally and underwent a surgical operation on the same day. It is stated that he had spent an amount of Rs.46,000/- till the date of petition and it may extend to Rs.62,000/- inclusive of the expenses of future
M.F.A.Nos.152 & 181/09
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treatment. The respondent contested the application that the said incident was not reported either to railway officials or railway police. It is reported by the guard of train No.6341 of 11.1.2008 that the said train left Ernakulam Junction at 5.50 hrs and arrived at Trivandrum at 10.10 hrs. The applicant was admitted at Unity Orthopaedic Centre, Karunagappally at 8.53 a.m. on the same day as per the medical certificate produced and hence it was contended that the incident alleged would have happened somewhere else. It was also _inter alia_ contended that he is not a _bonafide_ passenger and hence not entitled to compensation.
3. The Tribunal rejected the contention that the petitioner is not a _bonafide_ passenger based on Exhibit A3, original computer generated second class ticket No.241805209 for journey from Ernakulam Junction to Quilon Junction on 11.1.2008, issued from Ernakulam Junction on 10.1.2008 at 20.37 hrs. The genuineness of the said document is not under challenge and as such it was found by the Tribunal that applicant is a _bonafide_ passenger as alleged. Nothing was brought to our notice during the course of argument in order to have a different view on the said point.
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4. Regarding the alleged incident the applicant as PW1 testified regarding the fall over a broken slab in the 5[th] platform while he was trying to entrain Ernakulam-Trivandrum Intercity Express. But, he had underwent treatment only in a hospital situated in a distant place at Karunagappally. R1 investigation report filed by the respondent admits the alleged incident as well as the injuries sustained to his knee while he was boarding second class Ticket No.241805209 at platform No.5 in Ernakulam station while he is trying to board train No.6341 and when the train reached Karunagappally due to severe pain he got down and admitted in the Unity Orthopaedic Centre and undergone treatment there and he was discharged on 21.01.2008. The investigation report (Exhibit R1) of the respondent would clearly show the alleged incident and injuries alleged to have been sustained by the petitioner and that he was a _bonafide_ passenger holding a valid second class ticket.
5. Regarding the question of negligence Section 124A of Railways Act, 1989, is a protective umbrella based on the principle of strict liability (no fault liability), but with the exception provided therein under Clause (a) to (e). The alleged
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incident would not come under any of the clauses (a) to (e) as provided under Section 124A of the said Act. No case of application of Section 123 (c)(2) is either advanced or let in and hence the respondent is liable to compensate the applicant.
6. Regarding the quantum of compensation an amount of Rs.80,000/- was awarded by the Tribunal. M.F.A.No.152 of 2009 was filed claiming more compensation in spite of the restriction imposed under Rule 3 of the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990. As per sub rule (3) of Rule 3 second proviso the total compensation which can be granted in respect of any injury other than an injury specified in the Schedule or referred to in sub-rule (2) is limited to not exceeding Rs.80,000/-. It was submitted that such a restriction imposed is not proper as neither the Government nor the Railway can restrict the entitlement of compensation by a victim. Section 124 and 124A are based on strict liability (no fault liability) and hence it is within the power of the authority, i.e. the Central Government to restrict the compensation payable under no fault liability/strict liability and hence there is nothing wrong in Rule 3 of the Railway
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Accidents and Untoward Incidents (Compensation) Rules, 1990 and Rule 3 therein.
7. During the course of arguments, the learned counsel appearing for the appellant/petitioner, the injured, submitted that Rule 3 of the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 was subsequently amended enhancing the maximum amount up to 1,60,000/- in respect₹ of scheduled injuries as well as other injuries and submitted that, since it is a beneficial amendment, it has to be given retrospective operation and took reliance on the decision in **Rathi Menon** v. **Union of India (2001 (2) KLT 12 (SC)).** The compensation awarded by the Tribunal comes to 80,000/.₹ In so far as liquidated damages are concerned, the only evidence adduced is the medical receipts for an amount of 14,918/-. No other satisfactory evidence was adduced on account of liquidated damages. No satisfactory evidence was adduced to show the loss of earnings caused to the injured and the period of loss of earning. No certificate of disability, either permanent, temporary, partial or otherwise, was produced to show the loss of earning and the extent of loss of earning.
M.F.A.Nos.152 & 181/09
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8. In so far as unliquidated damages and loss of pain and suffering, a total evaluation of both the liquidated damages and unliquidated damages on account of the injury sustained by the appellant would not exceed an amount of ₹ 80,000/-. In the absence of documents to show the permanent partial disability or temporary disability, if any, it is not possible to assess the loss of earning on account of permanent partial disability or temporary disability, as the case may be. Hence, the decision rendered in Rathi Menon's case (supra) will not give much assistance to the case advanced by the petitioner.
9. As discussed earlier, the compensation granted is the maximum amount and hence both the appeals deserves only dismissal and we are doing so.
In the result, both the appeals are dismissed. No costs.
## **K. HARILAL (JUDGE)**
## **P. SOMARAJAN (JUDGE)**
DMR/-
