IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 31ST DAY OF MAY 2017/10TH JYAISHTA, 1939
## **MFA.No. 51 of 2013 (E)**
AGAINST THE DECREE AND JUDGMENT DATED 6.2.2013 IN OA.NO.(IIu)/ ERS/2012/0054, OF THE RAILWAY CLAIMS TRIBUNAL, ERNAKULAM
## APPELLANT/RESPONDENT:
UNION OF INDIA REP. BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI.
BY ADVS.SRI.JOHN MATHEW SRI.P.P.M.NAJEEB KHAN, SC, RAILWAYS
## RESPONDENTS/APPLICANTS:
1. NOORJAHAN E.M., AGED 49 YEARS, W/O.LATE MUHAMMED BASHEER, SAFIYA MANZL, AYANIVAYAL, AZHIKODE, KANNUR-9
2. MUHAMMED MANAF BASHEER, S/O.MUHAMMED BASHEER, SAFIYA MANZIL, AYANIVAYAL,AZHIKODE, KANNUR-9
## R1 & 2 BY ADV. SRI.C.K.SREEJITH
THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 31.05.2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **K. Harilal & P. Somarajan, JJ.**
**---------------------------------------------------M.F.A. No.51 of 2013 (E)**
**---------------------------------------------------Dated this the 31[st] day of May, 2017**
## **JUDGMENT**
## **Harilal, J.**
The Appellant is the Respondent in O.A.(IIu)/ERS/2012/0054 on the files of the Railway Claims Tribunal, Ernakulam Bench. The impugned order was passed on an application filed by the Respondents/Applicants claiming a compensation of ₹10 lakhs from the Appellant/Respondent for the death of one Muhammed Basheer, a male aged 51 years, in an untoward incident. The parties are referred to as in the impugned Judgment hereinafter.
2. According to the Applicants, they are the legal heirs of the deceased Muhammed Basheer. They averred that the said Muhammed Basheer was travelling from Ernakulam to Nagercoil by Guruvayur-Chennai Egmore Express train with a valid journey ticket and accidentally he fell down from the train at Ernakulam North railway station. After the incident, he was taken to the General Hospital, Ernakulam and from where referred to Amrita Hospital and
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while undergoing treatment, he succumbed to his injuries on 1.8.2011. The Applicants, being the wife and son of the deceased Muhammed Basheer, are entitled to get compensation as contemplated under the Railways Act, 1989 and the Rules made thereunder. Hence, they claimed an amount of ₹10 lakhs as compensation from the Respondent.
3. The Respondent filed a statement denying the averment in the application that the deceased died due to an untoward incident, but admitted the incident with a plea that it was due to the negligence of the deceased by attempting to entrain the moving train and thereby he himself invited the incident which culminated in his death, for which, the Respondent is not liable to pay any compensation. The Respondent further averred that it was a case of self inflicted injury as defined under Section 124A of the Railways Act and prayed for dismissal of the claim.
4. On the rival pleadings, the Applicants adduced the oral testimony of PW1 and Exts.A1 to A11 were marked. No oral evidence was adduced by the Respondent but marked Exts.R1 to
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R3. After considering the aforesaid evidence, on record, the Tribunal passed the impugned award granting an amount of Rupees four lakhs together with interest at the rate of 6% per annum from the date of filing of the OA till realisation of the said amount. This appeal is filed challenging the aforesaid order granting compensation of Rupees four lakhs to the Applicants, on several grounds.
5. Heard the learned counsel for the Respondent and the learned counsel for the Applicants. The point to be considered is whether the Tribunal is justified in granting the statutory compensation with interest to the Respondent.
6. The main argument advanced by the learned counsel for the Respondent is that the deceased was not a bonafide passenger and the Tribunal failed to appreciate the evidence, on record, in this respect in its correct perspective. Further, it is contended that actually the deceased has taken the ticket from Ernakulam South railway station and the accident occurred at Ernakulam North railway station. So, no reliance can be placed on Ext.A11, copy of electronic
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registration slip, produced by the Applicants. It was also contended that the accident, which culminated into the death of the deceased, occurred while he was attempting to entrain the moving train. But, the Tribunal has not considered the said contention raised by the Respondent in its correct perspective.
7. Per contra, the learned counsel for the Applicants advanced arguments, placing reliance on Ext.A11, copy of electronic registration slip, and contended that the Respondent has not disputed the genuineness of the ticket, but, according to them, no ticket was taken by the deceased while travelling. Therefore, there is no _bona fides_ in the present contention that no reliance can be placed on Ext.A11.
8. Going by the impugned order, it could be seen that the Tribunal has meticulously considered the issue whether the deceased was a bonafide passenger for his journey with a valid ticket in Train No.16128 Guruvayur-Chennai Egmore Express from Ernakulam to Nagarcoil on 18.7.2011 and on the basis of the evidence, on record, particularly Ext.A11, the Tribunal arrived at a
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finding that he was a _bona fide_ passenger. As rightly submitted by the learned counsel for the Applicants, going by the reply statement filed by the Respondent, it can be seen that the Respondent denied that the deceased was travelling with a valid travelling authority or ticket. In other words, according to the Respondent, the deceased was a passenger without any valid ticket. But, in this appeal, the Appellant contended that no reliance can be placed on Ext.A11 when they produced the same before the Tribunal and found accepted by the Tribunal. It is trite law that arguments pertaining to factual disputes cannot be raised at first, in appeal. In the impugned order, the Tribunal, after examining Ext.A11, copy of the electronic registration slip, found that the deceased was travelling on the strength of a valid travelling ticket and thereby he was a _bona fide_ passenger in the train on the date of incident. Therefore, this Court finds that in view of the absence of specific contention challenging the validity or genuineness of Ext.A11 in the counter statement, there is no _bona fides_ in the present plea that Ext.A11 is not a genuine or true one. Therefore, we reject the argument advanced by the learned counsel for the Respondent in this respect and we agree with the findings of the Tribunal.
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9. Further, the Tribunal considered the issue whether the deceased met with an incident as defined under Section 123 of the Railways Act, 1989 and whether the Respondent is exempted from payment of compensation by Section 124A of the Railways Act and found the said issue in favour of the Applicants. In order to prove the fact that the death of the deceased was in an untoward incident, the Applicants have produced Ext.A3 FIR, Ext.A4 postmortem certificate, Ext.A5 report of untoward incident submitted by the Station Master, Ext.A6 inquest report and Ext.A7 death certificate. After examining the aforesaid documentary evidence adduced by the Applicants, the Tribunal observed that Ext.A5 report of untoward incident submitted by the Station Master itself clearly reveals that the deceased Muhammed Basheer accidentally fell down while boarding Train No.16128 Express. The reply statement filed by the Respondent also states that “one male aged 54 years had fallen down from Train No.16128 Express and he was sent to hospital for treatment”. Therefore, we find that, the Respondent himself had admitted the accidental fall of the deceased occurred in the Ernakulam North railway station, as averred by the Applicants, and
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no evidence had been adduced to prove the plea that the deceased was attempting to board a moving train in a careless and negligent manner and thereby his action amounts to self inflicted injury. In the above analysis, we find that the Tribunal is justified in finding that the deceased Muhammed Basheer died due to an untoward incident occurred in the Ernakulam North railway station.
10. The next question to be considered is with respect to the exemption from payment under Section 124A of the Railways Act. The Tribunal has placed reliance upon the decision of the Apex Court in **Union of India** v. **Prabhakaran Vijaya Kumar (2008(2) KLT 700 (SC))** . We have gone through the proposition laid down by the Apex Court and we find that the Tribunal is justified in placing reliance on the aforesaid decision and arriving at a finding that the question of negligence on the part of the deceased does not arise while considering the claim under Section 123(c) of the Railways Act. More over, in the instant case, the Applicants succeeded in proving the death of the deceased in an untoward incident as alleged by them and the Respondent failed to produce any material
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evidence to contradict the case advanced by the Applicants through the evidence, on record.
From the above analysis, we find that the Tribunal has rightly appreciated the evidence, on record, in its correct perspective and there is no scope of interference by this court in exercise of the appellate jurisdiction. Therefore, we dismiss the appeal.
**K. Harilal Judge**
**P. Somarajan Judge**
ahz/
