IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 MFA.No. 161 of 2009() --------------------- OA.1/2003 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): RESPONDENT ------------------------ UNION OF INDIA, REP. BY THE GENERAL MANAGER, SOUTHERN RAILWAY CHENNAI. BY ADV. SRI.R.SATISH KUMAR RESPONDENT(S): APPLICANTS ------------------------- 1. ASSANKUTTY A.K., S/O.PAKKER, PANDIYANTAVIDE HOUSE, ICE ROAD, VADAKARA P.O., VADAKARA-3. 2. BEEVI, W/O ASSANKUTTY, PANDIYANTAVIDE HOUSE, ICE ROAD, VADAKARA P.O., VADAKARA. ADV. SRI.K.M.JAMALUDHEEN SRI.THOMAS ANTONY FOR R2 SRI.K.M.JAMALUDHEEN FOR R2 THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 03/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.F.A.No.161 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of August, 2010 JUDGMENT Barkath Ali, J. Challenge in this appeal under Section 27 of Railway Claims Tribunal Act is to the judgment and award of the Railway Claims Tribunal, Ernakulam Bench in O.A.No.1/2003 dated August 11, 2008 awarding a compensation of Rs. 4,00,000/- to the applicants/respondents for the loss of caused to them on account of the death of one Ismail.P. in a railway accident. 2. Respondents/applicants are the parents of deceased Ismail. On May 25, 2000, he was returning from Ernakulam to his house by Rajkot Express. Deceased was standing near the door as there was heavy rush in the compartment. When the train almost reached Vadakara railway station, the door of the compartment suddenly closed hitting heavily on the body of the deceased as a result of which he was thrown out of the compartment and sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment in the MFA.No.161/2009 2 Govt. Hospital, Vadakara. Claiming a compensation of Rs. 6,00,000/-, the claimants filed the O.A. before the Tribunal. 3. Appellant/Railways who are the respondent in the O.A. contested the case contending that the deceased jumped from the train and sustained injuries because of his own negligent act and that therefore applicants are not entitled to any compensation. 4. Pws 1 and 2 were examined and Exts.A1 to A7 were marked on the side of the respondents/applicants and RW1 was examined and Ext.R1 was marked on the side of the appellant/respondent before the Tribunal. The Tribunal on an appreciation of evidence found that the deceased was a bonafide passenger of Ernakulam-Rajkot express on May 25, 2000, that he fell down from the train and he succumbed to the injuries sustained while undergoing treatment in the hospital and awarded a compensation of Rs. 4,00,000/- with interest @ 9% per annum from the date of default. The appellant/Railways have now come up in appeal challenging the judgment of the Tribunal. 5. Heard the standing counsel for the appellant/Railways and MFA.No.161/2009 3 the counsel for the respondents/applicants. 6. The standing counsel for the Railways argued that the deceased was not a bonafide passenger of the train, that the deceased instead of boarding Malabar Express, boarded Rajkot Express which have no stoppage at Vadakara and that on reaching the Vadakara Railway station, he jumped from the train and sustained the injuries and that therefore applicants are not entitled to any compensation from the Railways. Counsel for the respondents/applicants on the other hand supported the judgment of the Tribunal. 7. The following points arise for consideration : 1) Whether the finding of the Tribunal that the deceased was a bonafide passenger of Ernakulam-Rajkot Express on May 25, 2000 can be sustained ? 2) Whether the deceased accidentally fell down from the train as alleged by the respondents/applicants and he died as a result of the injury sustained which will come under an 'untoward incident' as defined under Section 123 ( c) (2) of the Railways Act. 3) Whether the incident will come under MFA.No.161/2009 4 any of the exemptions provided under Section 124 A of the Railways Act. 8. The evidence of PW1, the first applicant, and PW2, another witness and Ext.A6, the inquest report clearly shows that the deceased was a bonafide passenger in Rajkot Express from Ernakulam- Vadakara on May 25,2000. It is seen from Ext.A6 , the inquest report that piece of ticket showing the same was recovered from the pant pocket of the deceased. It is also revealed from the evidence of PW1 and PW2 and the evidence of RW1, the Station Maser, that the deceased fell down from the train and sustained the injuries which is an 'untoward incident' as defined under Section 123 (c ) (2) of the Railways Act. No evidence was adduced by the Railways to show that the incident will come under any of the exemptions provided under Section 124 A of the Railways Act. That being so, the appellant -Railways is bound to compensate the respondents/applicants, who are the dependants of the deceased. Therefore, we confirm the finding of the Tribunal that the deceased was a bonafide passenger of the Rajkot Express on May 25, 2000 and that he fell down from the train near MFA.No.161/2009 5 Vadakara Railway station and sustained injuries and that he died as a result of the said injuries and that therefore respondents/applicants are entitled to compensation from the Railways. 9. The Tribunal has awarded a compensation of Rs. 4,00,000/- as provided under the Schedule of the Act. The Tribunal awarded interest @ 9% per annum from the date of default which appears to be not correct. Respondents/applicants are entitled to interest from the date of petition till realisation. In the result, the Appeal is dismissed. No costs. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MFA.No.161/2009 6