Y. Praveen v. Union of India (represented by General Manager, Southern Railway, Chennai)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **FRIDAY, THE 09TH DAY OF OCTOBER 2020 / 17TH ASWINA, 1942** ## **MFA.No.46 OF 2012** **AGAINST THE JUDGMENT IN OA (llu)ERS/2010/0046 OF RAILWAY CLAIMS TRIBUNAL, ERNAKULAM BENCH** ## **APPELLANT/APPLICANT:** **Y.PRAVEEN S/O. YOHANAN, PRINCE BHAVAN, KURA POST, VADACODE, KOTTARAKARA, KOLLAM DISTRICT-691557.** **BY ADV. SRI.V.PHILIP MATHEWS** ## **RESPONDENT/RESPONDENT:** **UNION OF INDIA REPRESENTED BY GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI.** **BY SRI.A.DINESH RAO, SC, RAILWAYS** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 07-10-2020, THE COURT ON 09-10-2020 DELIVERED THE FOLLOWING:** ## **M.F.A.(RCT) NO.46 of 2012** ## **:-2-:** ## **Dated this the 9[th ] day of October, 2020** ## **J U D G M E N T** This appeal is filed by the applicant before the Railway Claims Tribunal, Ernakulam Bench, challenging the dismissal of his claim sought under Section 16 of the Railway Claims Tribunal Act, 1987 (for short, 'the Act'). 2. He claimed to have been travelling with a valid second class ticket on 03.11.2009 in train No.6127 Chennai-Guruvayur train (Express train) from Nagercoil to Thiruvananthapuram and when the train reached Palliyadi near Marthandam, he was thrown out of train as a result of the jerking of the train. He claims that he was near the toilet washing his face and but for the jerk, he would not have been thrown out. 3. According to him, he suffered serious injuries and was treated in hospital. ## **M.F.A.(RCT) NO.46 of 2012** ## **:-3-:** 4. The respondent, Railway denied that he was a passenger in the train. It was contended that if at all he was standing near the door, the accident was out of his own negligence. It was pointed out that since the accident might have been the result of self inflicted injury, he was not entitled to claim compensation as a bona fide passenger. **==> picture [402 x 12] intentionally omitted <==** examined as PW1 and Exts.A1 to A10 documents were marked. On the side of respondents, RW1 was examined and Exts.R1 and R2 were received as evidence. 6. The Railway Tribunal after having detailed examination of evidence found that the appellant approached the Tribunal with unclean hands for compensation. In paragraph No.11 of the judgment, while discussing Issue No.2 it was held that he failed to prove that he travelled by train No.6127 ## **M.F.A.(RCT) NO.46 of 2012** **:-4-:** and consequently his claim for compensation was turned down. 7. I heard the learned counsel for the appellant and the respondent. 8. Drawing my attention to paragraph No.2 of the reply statement filed by the Railway, the learned counsel for the appellant contended that the finding of the Tribunal that the appellant was not a passenger in train No.6127 is faulty and against the admission made by the respondent. In paragraph No.2 of the reply statement, while denying the averments in the original application, the respondent is seen to have admitted that the appellant travelled on footboard and fell down due to his own act. Coupled with this, Ext.R1, DRM report also shows that the Investigating Officer was satisfied that the appellant was travelling in the train and he fell out of it. ## **M.F.A.(RCT) NO.46 of 2012** **:-5-:** |9.<br>It is contended that when there is| |---| |sufficient evidence to the effect that the| |appellant was travelling in the train, the finding| |of the learned Tribunal that there was no evidence| |to prove that he was a passenger is wrong and is| |liable to be interfered with.| |10. The learned counsel for the appellant| |submitted that the appellant might have been| |travelling with an ordinary ticket and this,| |however, does not disentitle him from claiming| |compensation as a bona fide passenger. It was| |contended that once there is evidence that he has| |been travelling in train, burden lies on the| |railway to show that the claimant was not a bona| |fide passenger. It was further contended that| |merely because a traveller happens to be on| |footboard, claim for compensation cannot be| |negatived in as much as the Act intended to benefit| ## **M.F.A.(RCT) NO.46 of 2012** **:-6-:** the community of passengers and a liberal view ought to be taken in favour of the claimant. It is contended that a traveller with an ordinary ticket in an Express train is nevertheless a passenger defined by the Act and cannot be excluded from the definition of 'passenger' in the Explanation to proviso in Section 124-A of the Act. To support the plea that the appellant was a bona fide passenger entitled to compensation irrespective of the class of ticket taken for the journey, the learned counsel for the appellant relied on the following decisions reported in **Union of India v. Prabhakaran Vijaya Kumar [2008(2) KLT 700 (SC)]** , **Union of India v. Rina Devi [2018(2) KLT 1060(SC)]** , **Jayan v. Union of India (2013(3) KLT 501)** , **Union of India v. A.Geetha & ors. (2017(3) KHC 303)** , **Raju K.Thomas & anr. v. Union of India (2017(4) KHC 59)** , **Union of India v. Leelamma & ors. (2009 KHC 256)** , ## **M.F.A.(RCT) NO.46 of 2012** **:-7-:** **Jayalakshmi & ors. v. Union of India (2011(2) KHC** **706)** and **Union of India v. Deena (2012(4) KLT 5)** . 11. On the other hand, the learned counsel for the respondent submitted that the appellant was not a passenger at all in train No.6127 and the finding of the learned Tribunal did not warrant any interference. It was further submitted that even assuming that the appellant was travelling with an ordinary ticket also, he cannot claim compensation as a bona fide passenger. Drawing my attention to Section 55(2) of the Act, the learned counsel for the respondent contended that a passenger unless he had with him a proper pass or ticket, could not have travelled in the express train without obtaining the permission of the authorised Railway servant. The substance of the contention is that unless the travel was without prior permission of the concerned railway servant, it is an ## **M.F.A.(RCT) NO.46 of 2012** ## **:-8-:** unauthorised journey, for which, he was liable to have been prosecuted under Section 137 of the Act. It is also submitted that no compensation is payable to a passenger who sustains injuries due to his own criminal act and an accident arising out of such an act is not considered to be an 'untoward incident' within the meaning of Section 123(c) of the Act. In this respect, he relied on two decisions in **Union of India v. Nandabai [2016(1) KLT Online 2241 (Bom.Nagpur)]** and **S.K.Sharma v. The** ## **General Manager, Railway(ILR (2007) MP 397).** 12. After hearing both sides, I am of the opinion that the matter has to go back to the Railway Claims Tribunal over again for a fresh decision as to whether the appellant was the passenger of train No.6127. The Tribunal has to re-appreciate the evidence and enter a definite finding as to whether the appellant was travelling ## **M.F.A.(RCT) NO.46 of 2012** ## **:-9-:** in train No.6127 with ordinary ticket. 13. The legal question as to whether the appellant could have travelled in the Express train with an ordinary ticket and such travel affected legal right to claim compensation as bona fide passenger can arise only when there is a clear finding on reappreciation of evidence as to whether or not, the appellant was a passenger in train No.6127. If the learned Tribunal enters a factual finding on this question in favour of the appellant, then it will also consider the claim of the appellant for compensation in the light of the above legal submissions made by the counsel on either side. 14. The certificate referred to in Section 55(2) could be even an oral permission or a reorganising nod of the authorised servant depending on the facts of the case. Travelling with ## **M.F.A.(RCT) NO.46 of 2012** ## **:-10-:** an ordinary ticket in an Express train may not by itself amount to an offence under Section 137 of the Act unless the intention of the passenger was to defraud the Railway. He could claim himself to be a bona fide passenger depending on facts of the case. An offence under Section 137 may not be readily presumed irrespective of all facts and circumstances since the test for attracting commission of offence in the proof of criminal intention of the passenger to defraud the Railway administration. 15. Learned counsel for the appellant submitted that he may be given an opportunity to adduce fresh evidence in support of his claim for compensation. After hearing both sides, I am of the opinion that before deciding the issues involved in the case, an opportunity shall be given to both sides to adduce evidence. ## **M.F.A.(RCT) NO.46 of 2012** **:-11-:** In the result, setting aside the impugned order dated 13.10.2011, this appeal is allowed remanding the matter back to the Railway Claims Tribunal to decide the issues afresh on evidence, as expeditiously as possible at any rate within a period of three months from the date of receipt of certified copy of this judgment. The Tribunal shall issue notice to the parties immediately on receipt of the records. All pending interlocutory applications are closed. Sd/- **T.V.ANILKUMAR JUDGE** ami/