Union of India v. Parameswaran Pillai (deceased) and Saraswathi Amma

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 6TH DAY OF AUGUST 2012/15TH SRAVANA 1934** ## **MFA.No. 54 of 2009 ( )** ## **----------------------** **OA.38/2005 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM BENCH -------------** ## **APPELLANT/RESPONDENT:** ## **---------------------** **UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI.** **BY ADV. SRI.JAMES KURIAN, SC, RAILWAYS** ## **RESPONDENTS/APPLICANTS 1 AND 2:** **-------------------------------** ## **1. PARAMESWARANPILLAI (DIED)** **2. SARASWATHI AMMA, W/O. PARAMESWARAN PILLAI, NANDHU BHAVAN MANAKKARA SASTHAMCOTTA, KOLLAM DISTRICT.** **R2 BY ADVS.SRI.S.SAJITH** **SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.RAJAN VELLOTH SRI.A.S.SABU SRI.RAFEEK. V.K. SRI.PRATHAP PILLAI** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 06-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VK** “CR” # **THOTTATHIL B.RADHAKRISHNAN & K.VINOD CHANDRAN, JJ.** -------------------------------------------------- M.F.A.No.54 of 2009 --------------------------------------------------Dated this the 6[th] day of August, 2012 ## JUDGMENT ## Thottathil B.Radhakrishnan, J. 1.Railway administration appeals against the judgment of the Railway Claims Tribunal granting compensation to the parents of Radhakrishna Pillai (for short, 'Pillai'), who died as a result of an incident on 11.11.2004. The Tribunal found that while travelling from Calicut to Kannur in Train No.619, he fell when that running train jerked violently, resulting in the door of the compartment swinging and smashing him down and that it was an “untoward incident” as defined in the Railways Act, 1989, (for short, the “Railways Act”), for which compensation is payable under Section 124A of that Act. The Tribunal repelled Railways' plea that he was not a ' _bona fide'_ passenger. - 2.The ground of the Railways in this appeal is confined to MFA54/09 -: 2 :- the plea that Pillai cannot be held to be a ' _bona fide'_ passenger as his passenger ticket was not produced by the claimants, or recovered from his body. 3.Pillai was injured on 11.11.2004. He was removed to the hospital, from where he died on 17.11.2014. His mother deposed as P.W.1 that her son had purchased a ticket from Calicut Railway Station. That was not recovered from his body. There is nothing on record to show that the mother was accompanying her son. Obviously, PW1's statement that her son had purchased ticket from Calicut Railway Station is a presumptive one, going by the common course of human conduct. Deceased Pillai was having some business. His mother's testimony was that he was travelling in connection with his business. In the common course of human conduct, his mother would never have had any reason to presume or believe that he would have travelled without a valid ticket. Going by the facts, we do not see any premise to presume that he would have travelled without a MFA54/09 -: 3 :- valid ticket. As rightly noted by the Tribunal, the Railways have security personnel who would and could arrest unauthorized travellers. There are also Ticket Examiners. In the common course of human conduct, we cannot but presume that Pillai was a passenger travelling under a valid ticket. There is nothing on record to the contrary. Following the incident, Pillai was hospitalised from 11.11.2004, till he died on 17.11.2004. These and the attendant circumstances persuade us to hold that it would be wholly unreasonable, in the realm of appreciation of evidence, to find that the deceased was travelling without a valid journey ticket. 4.The Tribunal is authorised to decide on claims of compensation under Section 124A of the Railways Act. That is a piece of social welfare legislation intended to provide benefit by way of succor, to the victims of; and dependents of passengers who happened to be killed as a result of; “untoward incident”. That provision is made “notwithstanding anything contained in any other law”. MFA54/09 -: 4 :- 5.The power of the Tribunal to enquire and determine claims against a railway administration for compensation for death or injury to passengers occurring as a result of railway accidents, was included in the Railway Claims Tribunal Act, 1987, for short, “Tribunal Act”, with effect from 1.8.1994, the date of introduction of Section 124A and the definition of “untoward incident” in Section 123(c) in the Railways Act. 6.The Tribunal, going by Section 18 of the Tribunal Act, shall not be bound by the procedure laid down in the Code of Civil Procedure, but shall be guided by the principles of natural justice and, subject to the other provisions of that Act and of any rules, it has the power to regulate its own procedure. Sub-section 2 of Section 18 provides, _inter alia_ , that every application shall be decided on perusal of documents, written representations and affidavits and after hearing such oral arguments as may be advanced. Section 28 of the Tribunal Act provides that the provisions of that Act shall MFA54/09 -: 5 :- have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than that Act. 7.The Railway Claims Tribunal (Procedure) Rules, 1989 made and issued by the Central Government under Section 30 of the Tribunal Act provide, _inter alia_ , in Rule 22, that the Tribunal shall make a brief memorandum of the substance of the evidence of every witness as the examination of the witness proceeds. Rule 30 among those Rules, provides, _inter alia_ , that the Tribunal shall decide every application on perusal of documents, affidavits and other evidence, if any, and after hearing such oral arguments as may be advanced. That is in specific consonance with the provisions in Section 18(2) of the Tribunal Act, which has already been noted. When Section 18(1) of the Tribunal Act enjoins that the Claims Tribunal shall be guided by the principles of natural justice and shall have powers to regulate its own procedure, MFA54/09 -: 6 :- such prescription; with the statutory eligibility to claims under Section 124A of the Railway Act, read with the overriding effect provided by Section 28 of the Tribunal Act, clearly excludes the requirement to conform to the provisions of the Evidence Act, _stricto senso_ and with technical precision, though the guiding beacons embedded in that Act would guide the decision making process of the Tribunal. The nature of construction of statutes, assimilation and appreciation of evidence and other attendant factors in connection with the adjudicating process should always be carried and shall be in consonance with the objects sought to be achieved by legislations that are being applied. When a social welfare legislation is aimed to provide succor and to the benefit of those involved in injuries or death, the Tribunal is duty bound to maintain the scales of justice to be so balanced that its fulcrum does not get obliterated by such approach as would not be conducive to the victims who, essentially, crave for an order for compensation from the Tribunal. MFA54/09 -: 7 :- 8.Contextually, it is worthwhile to refer to the decision of the Supreme Court in **Thazhathe Purayil Sarabi v. Union of India [2009 (4) KLT 370 (SC)]** ; the decision of this Court in **Joji C. John v. Union of India [2002 (1) KLT 678]** and that of the High Court of Andhra Pradesh in **Union of India v. Baburao Koddekar (AIR 2003 Andhra Pradesh 23)** categorically laying down, among other things, that the fact that a passenger had purchased a ticket and is a “ _bona fide_ ” passenger is always to be presumed unless it is shown to be otherwise. Such presumption would always swing in favour of the injured. If, unfortunately, the injured dies, such presumption shall aid those entitled to compensation in that regard. - 9.With the aforesaid, we do not find any ground to interfere with the impugned judgment. - 10.Before parting, it needs to be stated that we find a MFA54/09 -: 8 :- disturbing feature in the matter of award of interest. The Tribunal delivered its verdict four years after the incident, though the application was filed in 2005, following the accident on 11.11.2004. Yet, the Tribunal gave 45 days' time for the Railways to satisfy the award and passed an order granting interest at 9% on the compensation amount, only if the Railways did not make the deposit within that period of 45 days. This means that if the Railways had deposited the amounts within 45 days, the dependants of the victim of an untoward incident would have lost the interest at 9% on the amount of Rs.4 lakhs for a period around four years. This is never envisaged in the statutory scheme. The Apex Court laid down in **Sarabi** _(supra)_ that, under the provisions of Section 3 of the Interest Act, 1978 and under Section 34 of the CPC, interest can be directed to be paid from the date of the claim petition. In that case, it was held that the Tribunal and the High Court were wrong in not granting any interest whatsoever to the claimants, except by way of a default clause, which is contrary to the MFA54/09 -: 9 :- established principles relating to payment of interest on money claims. The law laid thereby is clear and categoric that interest awarded is not to be made merely as a default clause but is to be granted as part of the legitimate entitlement of the claimants. In **Subhadra Andhrajanam v. Union of India** [2011(2) KLT SN 15 (Case No.20)] rendered following **Sarabi** _(supra)_ , it was noted that the conclusion in **Sarabi** is essentially on the well accepted principle that payment of interest is basically compensation for being denied the use of the money during the period for which the same could have been made available to the claimants. The Railway Claims Tribunal would, and ought to, be well advised, to ensure that whatever is due to the victims and dependents is permitted to flow to them under its orders. That is the purpose for which the Tribunal exists. 11.In the case in hand, fortunately for the claimants, the Railways did not deposit the compensation amount within the period of 45 days stipulated in the impugned judgment. MFA54/09 -: 10 :- Therefore, the provision for interest in terms of that judgment would operate. Railway establishment concerned is hereby directed to deposit the compensation amount with accrued interest in terms of the impugned judgment before the Tribunal within a period of two months from now. In the result, this appeal is dismissed. In view of the award of interest contained in the impugned judgment, no separate order for costs is imposed against the railway administration in this appeal. Sd/- **THOTTATHIL B.RADHAKRISHNAN, Judge.** Sd/- **K.VINOD CHANDRAN, Judge.** mns/Sha -true copy- PS to Judge