Union of India v. Venugopalan and Athira

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 MFA.No. 59 of 2008() -------------------OA.72/2000 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): RESPONDENT ------------------------ UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI. BY ADV. SRI.C.S.DIAS, SC, RAILWAYS RESPONDENT(S): APPLICANTS 1 & 2 ------------------------------- 1. VENUGOPALAN, S/O.GOVINDAN, MARATTUPARAMBU, THOTTAKKATTUKARA, ALUVA, ERNAKULAM DISTRICT. 2. ATHIRA, D/O.VENUGOPALAN, MARATTUPARAMBU, THOTTAKKATTUKARA, ALUVA, ERNAKULAM DISTRICT. ADV. SRI.V.G.ARUN FOR R1 & R2 SRI.S.K.HARISH FOR R1 & R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17/08/2011, THE COURT ON 9.11.2011 DELIVERED THE FOLLOWING: ## **K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------M.F.A. No.59 of 2008 ----------------------------------------------Dated 9[th] November, 2011.** ## **J U D G M E N T** ## **Joseph Francis, J.** This appeal is filed by the respondent in O.A.72/2000 on the file of the Railway Claims Tribunal, Ernakulam Bench. Respondents 1 and 2 herein are the applicants 1 and 2 in that O.A., which was filed by the applicants 1 to 3, under Section 16 of the Railway Claims Tribunal Act, 1987. During the pendency of that application, the third applicant, who is the mother of the deceased expired on 25.11.2002. 2. The case of the applicants in O.A.72/2000 is briefly as follows : 1[st] applicant is the husband of the deceased Jayalatha and the 2[nd] applicant is their daughter. They filed the above application against the respondent claiming a compensation of Rs.4,00,000/- for the death of Jayalatha, wife of the first applicant, who was working as a Mahila Pradhan agent, in an alleged untoward incident that took place on 3.11.1999 at Meenchanda near Kallayi Railway Station. The applicants have stated that the deceased boarded the MFA 59/08 2 Parasuram express train from Alwaye Railway station to go to Calicut with II class train ticket No.74232096 and when the train reached Shoranur Railway Station she got down from the train, but she could not enter the train again, as it started moving and continued her journey in the next available train to Calicut, which was a Coimbatore - Kannur passenger train. When the train reached near Meenchanda near Kallai Railway Station, due to unexpected jerk, the deceased accidentally fell out of the compartment, run over by the train and succumbed to the serious injuries sustained. 3. The respondent filed its reply statement dated 1.3.2001 denying the fall of the deceased from the train. The respondent contended that the statement of the Gate Keeper at Meenchanda Railway gate and the deposition of Praveen Kumar K., brother of the deceased made to the police confirm that the deceased was run over by the train while crossing the railway track and as such this incident does not attract the provision of Section 123(c)(2) of the Railways Act, 1989(for short, 'the Act). The respondent also stated that the applicants have furnished MFA 59/08 3 false statement in order to claim compensation and hence they are punishable under Section 148 of the Act. It is also stated that the applicants are not the only dependents of the deceased. It is further submitted that since the deceased was run over by the train while crossing the railway track, the respondent is not liable to pay any compensation and hence, prayed to dismiss the application. 4. Before the Claims Tribunal, on the side of the applicants, PW1 was examined and Exts.A1 to A10 were marked. On the side of the respondents, RW1 was examined. The Tribunal, on appreciating the evidence found that the incident in which the deceased died is an untoward incident as defined in Section 123(c)(2) of the Act and that the applicants 1 and 2 are entitled to get compensation of Rs.4,00,000/-. Against that judgment, the respondent filed this appeal. 5. Heard learned counsel for the appellant and learned counsel for the respondents. 6. At the time of argument, learned counsel for the appellant raised the following contentions : There is no legal, MFA 59/08 4 valid and acceptable evidence either oral or documentary to prove the incident or that the deceased K.Jayalatha was a bonafide passenger as claimed. The Tribunal ought to have rejected the oral evidence of PW1 being only hearsay, and the documentary evidence which is self conflicting and not inspiring confidence. The finding and conclusion that this incident can be termed as an untoward incident as defined under Section 123(C)(2) of the Act is wrong and unsustainable. The Tribunal ought to have found that the deceased was not a passenger who met with any untoward incident for which the respondent is liable to compensate under Section 124-A of the Act. The Tribunal ought to have found the defence plea that this is a case of run over by train when the deceased was crossing the railway track as witnessed by RW1, the gate keeper of Meenchanda railway gate. The Tribunal have miserably erred in ignoring the defence plea that the brother of the deceased had filed FIR stating that the deceased was run over by train and hence the incident cannot be an untoward incident. Learned counsel for the respondents supported the judgment of MFA 59/08 5 the Tribunal. 7. As per Section 123(c)(2) of the Act, “untoward incident” includes the accidental falling of any passenger from a train carrying passengers. The first applicant, who was examined as PW1 filed chief affidavit stating that his wife Jayalatha died due to accidental fall from Coimbatore - Kannur passenger train near Meenchanda near Kallayil railway station on 3.11.1999. PW1 deposed that the incident occurred while she was travelling from Alwaya to Calicut and that she was a bonafide passenger travelling in that train with valid ticket. PW1 deposed that on 3.11.1999, Jayalatha had taken second class train ticket from Alwaye station to travel to Calicut and boarded the Parasuram Express train. When the train reached at Shornur station, she got down from the train and she was not able to board that train since the train moved before she could enter into it. She waited there at the station and boarded the next available train to Calicut i.e., Coimbatore - Kannur passenger train. When the Coimbatore - Kannur passenger reached near Meenchanda near Kallai station, due to an MFA 59/08 6 unexpected jerk she fell down out of the compartment accidentally and was run over by train. She had sustained serious injuries and succumbed to the injuries. The train ticket purchased by the deceased is marked as Ext.A3. Ext.A4 is the copy of the FIR recorded in connection with the accident. The first information statement is given by Praveenkumar, who is the brother of deceased Jayalatha. In the F.I. statement, it is stated that on 3.11.1999, he heard that a woman was killed by hitting a train near north of Meenchanda railway gate and he went to the place of occurrence at about 8.30 in the night and he identified that the deceased was his sister Jayalatha. From the F.I. Statement, it is clear that the first informant is not an eye witness to the incident. PW1 is also not an eye witness to the incident. 8. RW1 was the gate keeper of Meenchanda railway gate at the time of accident. RW1 deposed that one lady just crossed the railway crossing and at that time, Coimbatore - Kannur passenger hit the body of the deceased. RW1 deposed that across the railway gate, there is a Temple and he thought MFA 59/08 7 that she was crossing the level cross for going to the Temple. RW1 deposed that he reported the aforesaid incident to the Kallai Station Master and the police had not taken any statement from him. RW1 deposed that from the purse of the deceased, a railway ticket from Aluva to Kozhikode was recovered by the police. 9. Learned counsel for the respondents invited our attention to the decision reported in **Jayalakshmi v. Union of India** (2011(2) ILR Kerala series 869), in which it was held that the burden is on the local police and the officers of the Railway force to conduct an enquiry/investigation into the cause of the accident and come to appropriate conclusion (But the appellant points out that the rules relied on therein was not framed at the time of the accident in this case). 10. In the present case, the appellant has not produced any report given by RW1 before the Station Master or any enquiry report regarding any investigation conducted by the Railway, whereas, the applicants have produced copy of final report filed by the police under Section 174 of the Criminal MFA 59/08 8 Procedure Code before the Executive Magistrate Court, Kozhikode, which is marked as Ext.A6. Ext.A6(a) is the English translation of Ext.A6. But, in the judgment, Exts.A6 and A6(a) are described as inquest report instead of final report. Actually, the inquest report is not produced in this case. In Ext.A6(a) it is stated that on the basis of the investigation of the case so far, from the statements of the local people at the time of preparing the Inquest Report and from the statement of the doctor, who conducted the post mortem of the body, one female named Jayalatha, D/o.Dasan, W/o.Venugopal aged 40, 99, Plackal House, Arakkinar, Beypoor amsom while travelling from the house of her husband at Alwaye to her own house at Arakkinar on 3.11.99 at 19.50 hours in Kannur - Coimbatore passenger train while going towards Kannur and when the train reached near Meenchantha Railway gate at Panniyankara amsom fell down through the door on the left side of the compartment accidentally and thereby run over by the train and sustained grievous injury to head, trunk, etc. and died. 11. Since Ext.A6 final report is filed after proper MFA 59/08 9 investigation by the police, that has to be given more evidentiary value than the oral statement given by RW1, after a lapse of 8 years from the date of the accident. Therefore, we are of the view that the learned Railway Claims Tribunal is fully justified in finding that the incident in which the deceased died is an untoward incident, as defined under Section 123(c)(2) of the Act and that the applicants 1 and 2 are entitled to get compensation of Rs.4,00,000/-. Accordingly, this appeal is dismissed as it is without any merits. There is no order as to costs. Sd/- ## **K.M.JOSEPH, JUDGE.** Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (True copy) P.S. to Judge.