Union of India v. Sreeja and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.HARIPRASAD FRIDAY, THE 7TH DAY OF JUNE 2013/17TH JYAISHTA 1935 MFA.No. 196 of 2009 (U) -----------------------OAU/ERS/2007/0042 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM APPELLANT(S)/RESPONDENT: ---------------------------------------------- UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY CHENNAI. BY ADV. SRI.N.B.SUNIL NATH,STANDING COUNSEL FOR RAILWAYS RESPONDENT(S)/CLAIMANTS: ------------------------------------------- 1. SREEJA, W/O.LATE BABU CHETTIAR @ BABURAJ, BABU VILASAM VELINELLOOR, KAINGANOOR P.O., KOTTARAKKARA KOLLAM DISTRICT. 2. SHIBIN BABU, S/O.LATE BABU CHETTIAR @ BABURAJ, BABU VILASAM VELINELLOOR, KAINGANOOR P.O., KOTTARAKKARA KOLLAM DISTRICT. 3. SOUMYA BABU, D/O.BABU CHETTIAR @ BABURAJ, BABU VILASAM, VELINELLOOR KAINGANOOR P.O., KOTTARAKKARA, KOLLAM DISTRICT. REPRESENTED BY THE IST APPLICANT MOTHER. R1 & R2 BY ADV. SRI.MARTIN G.THOTTAN THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24-05-2013, THE COURT ON 07-06-2013 DELIVERED THE FOLLOWING: ## **K.M.JOSEPH & A.HARIPRASAD, JJ.** ## **-------------------------------------M.F.A.No. 196 of 2009** **-------------------------------------Dated this the 7[th] day of June, 2013.** ## **JUDGMENT** ## A.Hariprasad, J. Appeal under Section 23 of the Railway Claims Tribunals Act, 1987 (in short, “the Act of 1987”). 2. Facts of the case in nut shell are the following: Respondents are the legal heirs and dependants of deceased Babu Chettiar @ Baburaj, who allegedly died in an untoward incident occurred on 12.02.2007 near Chingavanam Railway Station while he was travelling from Kozhikode to Kollam by train No.6348 Mangalapuram-Thiruvananthapuram Express. In the claim petition filed by the respondents, it is contended that the untoward incident occurred when the deceased fell down from the train. He died due to the severe injuries, including head injury sustained in the accident. It is contended in the application preferred before the Railway Claims Tribunal (in short, “the Tribunal”) under Section 16 of the Act of 1987 that the deceased at the material time was a tube well worker at Kozhikode. He was a native of Kollam. The untoward incident occurred while he was travelling from his work place to his native place. 3. The Railway Administration filed a reply statement refuting the contentions in the petition. The train, which allegedly caused the untoward 2 MFA No.196/2009 incident, arrived at Chingavanam at 1.47 hours and left at 1.48 hours without any detention. The alleged incident of falling from train was not reported to any railway official either by the co-passengers or by any officer of the Railway. There was no incident of chain pulling by the co-passengers. The Railway Administration contended that the applicants/respondents did not produce journey ticket and the Police, in the course of investigation, did not find out any ticket from the body of the deceased. The Railway Administration further contended that the deceased was not a bonafide passenger and not travelled in the train as alleged by the respondents. 4. The learned Chairman of the Tribunal considered the matter at length by relying on Exts.A1 to A9 marked on the side of the respondents and testimony of PW1, the 1[st] respondent. Ext.R1 investigation report was also considered. Upon considering the materials, the Tribunal directed the Railway Administration/appellant to pay a sum of `4,00,000/- as compensation together with interest at the rate of 7.5% per annum from the date of application till the date of actual payment. Aggrieved by that finding, the Railway Administration has come up in appeal. 5. Heard the learned counsel for the appellant and the respondents. We carefully perused the records. 6. Appellant raised mainly two contentions. Firstly, the deceased was not a bonafide passenger and there is no evidence to find so. Secondly, Ext.R1 investigation report would reveal that the incident occurred due to careless and negligent act of the deceased as he might have travelled on the foot board of the train. Railway Administration therefore contended that the 3 MFA No.196/2009 respondents are not entitled to get compensation. The Tribunal noticed inconsistency in the contentions raised by the Railway Administration. In one breath, they contended in the reply statement that the deceased did not travel in the train as alleged by the respondents. Next moment, they would contend that he was not a bonafide passenger. Further, the Railway Administration would contend that he was travelling on the foot board unauthorisedly. Contention of the appellant that the deceased was not a passenger in the train cannot be countenanced for the reason that Ext.R1 investigation report prepared by the Enquiry Officer of the Railway Administration itself would show that such a contention can only be a mere conjuncture or surmise. In Ext.R1 investigation report, without any reliable material, the Enquiry Officer opined that the deceased might have travelled in foot board of the train, which is not permitted by law. For this finding also, there is no basis. The Tribunal heavily relied on the evidence of PW1 to uphold the contentions of the respondents. It is pertinent to note that except Ext.R1, there is no other evidence adduced on the side of the Railway Administration to challenge the evidence adduced by PW1 and other documentary evidence. The Tribunal therefore, rightly placed reliance on the evidence adduced by the respondents to find that the deceased was travelling in the said train on the fateful day. It is true that PW1 did not see the incident. However, her evidence that the deceased before starting journey contacted her over phone and informed about his travel by the said train was found to be acceptable by the Tribunal. We find no reason to differ with that finding of the Tribunal. Therefore, the fact that the deceased was a passenger in the train in question cannot be disputed. Finding of the Tribunal in this regard is only to be 4 MFA No.196/2009 affirmed. 7. Learned counsel for the appellant submitted that non-recovery of ticket from the body of the deceased or non-production of ticket by the respondents will show that the deceased was not a bonafide passenger. Learned counsel for the respondents relying on **Joji C.John v. Union of India (2002 (1) KLT 678)** contended that mere failure to produce ticket will not lead us to the inference that the deceased was not a bonafide passenger. Though, the expression 'bonafide passenger' is not defined either in the Act of 1987 or in the Railways Act, 1989, in the Explanation added to Section 124A of the Railways Act, 1989 , it can be seen that a passenger includes a person who has purchased a valid ticket for travelling by a train carrying passengers on any date and who becomes a victim of an untoward incident. Section 124A of the Railways Act, 1989 deals with compensation on account of untoward incident. Proviso to that Section shows that no compensation shall be payable by the Railway Administration, if the passenger dies or suffers injury due to (a) suicide or attempted to suicide by him - (b) self inflicted injury - (c) his own criminal acting (d) any act committed by him in a state of intoxication or insanity, and (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. 8. On a reading of Section 124A of the Railways Act, 1989 it can be seen that if in the course of working a railway an untoward incident occurs, then 5 MFA No.196/2009 whether or not there has been any wrongful act, neglect or default on the part of the Railway Administration, a passenger who has been injured or a dependant of a passenger, who was killed, is entitled to maintain an action and recover damages in respect thereof. Reading of this provision will show that it speaks about some sort of a no fault liability on the part of the Railway Administration, especially when it is established that the deceased was travelling in the train and he fell down from the train sustaining fatal injury. Then it becomes the responsibility of the Railway Administration under Section 124A of the Railways Act, 1989 to compensate the claimants/respondents for the untoward incident occurred. Regarding the nature of the liability of the Railway Administration, the Supreme Court in **Union of India v. Prabhakaran Vijaya Kumar (2008 (2) KLT 700)** held the following: “........... No doubt, it is possible that two interpretations can be given to the expression 'accidental falling of a passenger from a train carrying passengers', the first being that it only applies when a person has actually got inside the train and thereafter falls down from the train, while the second being that it includes a situation where a person is trying to board the train and falls down while trying to do so. Since the provision for compensation in the Railways Act is a beneficial piece of legislation, in our opinion, it should receive 6 MFA No.196/2009 a liberal and wider interpretation and not a narrow and technical one. Hence in our opinion the latter of the above mentioned two interpretations i.e. the one which advances the object of the statute and serves its purpose should be preferred. If we adopt a restrictive meaning to the expression 'accidental falling of a passenger from a train carrying passengers' in S.123(c) of the Railways Act, we will be depriving a large number of railway passengers from getting compensation in railway accidents. .............” 9. Appellant's contention that no ticket had been produced either by the respondents or by the Police during the investigation is also of not much relevance. Tribunal considered this question and found that there could have been many reasons for the non-availability of the tickets. Tribunal rightly accepted the contentions of the respondents and the evidence of PW1 to find that the deceased travelled from Kozhikode upto Chingavanam before suffering the untoward incident. As rightly observed by the Tribunal, the Railway Authorities would have detected the factum of his travelling without a proper ticket in the normal course. Railway Administration has no case that the deceased attempted to commit suicide. Another contention raised by the appellant that nobody pulled the chain to stop train also will not advance the case of the appellant. There can be umpteen reasons for not pulling the chain 7 MFA No.196/2009 by anyone. Reckoning the entire matters, we are of the opinion that the Tribunal is perfectly justified in finding that the deceased was possessing a valid ticket and boarded the train from Kozhikode to Kollam. Whether the deceased himself was responsible for the untoward incident or it was on the fault of the Railway Administration is immaterial for considering the claim for compensation in view of the wording in Section 124A of the Railways Act, 1989. On careful perusal of the records and the impugned order of the Tribunal, we find that the entire matter has been properly considered by the Tribunal and it has to be confirmed. We find no reason to interfere with the judgment of the Tribunal. In the result, the appeal is dismissed as it is devoid of any merit. There is no order as to costs. All pending interlocutory applications will stand dismissed. ## **K.M.JOSEPH, JUDGE.** ## **A. HARIPRASAD, JUDGE.** **cks**