IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 4TH JANUARY 2008 / 14TH POUSHA 1929 MFA.No. 1 of 2008(U) -------------------- OA.55/2003 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/RESPONDENT IN THE OA: ------------------------------- UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI. BY ADV. SRI.T.P.M.IBRAHIM KHAN,SR.SC, RAILWAYS RESPONDENTS/PETITIONER IN THE OA: --------------------------------- H.NISA, AGED 38 YEARS, WIDOW OF SURESH, THIRUVONAM, VETTOOR P.O., VARKALA, THIRUVANANTHAPURAM DISTRICT, KERALA STATE. BY THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 04/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA.1/2008 ORDER IN I.A.NO.34/2008 IN M.F.A.NO.1/2008 DISMISSED 4.1.2008 SD/- J.B.KOSHY, JUDGE SD/- K.HEMA, JUDGE /TRUE COPY/ J.B. Koshy & K.Hema, JJ. -------------------------------------- M.F.A.No.1 of 2008 --------------------------------------- Dated this the 4th day of January, 2008 J U D G M E N T Koshy,J. The first respondent in this case who was employed as a Lower Division Clerk in the Ministry of Education, Kerala State, while travelling in a train from Thiruvananthapuram to Varkala, that is, from the place of employment to his native place, received serious injuries by a violent attack by some unknown persons by throwing of stones. Incident is not disputed. She claimed a compensation of Rs.4,00,000/-. She was admitted at Chirayinkeezhu Hospital and referred to Kerala Institute of Medical Sciences and thereafter to Eye hospital and diagnosis was Right Eye - Rupture globe, total hyphema. It was found that vision of her right eye is totally lost and it has substantially shrunk in size, disfiguring her. It is also not disputed that in the incident she sustained rupture of the right eye globe, no perception of light; Phthisis bulbi (shrinkage) of the right eye resulting in disfigurement with no possibility of restoration of eye sight. Therefore, as a result of the accident, there was severe M.F.A.No.1/08 2 facial disfigurement apart from loss of eye sight of one eye. It is true that there was only loss of one eye sight. If there was loss of vision of one eye only without complications of disfigurement of eye ball and the other being normal, compensation payable will be Rs.1,20,000/- under Item 27 of Part III. But here there is severe disfigurement of the face and disfigurement of eye ball and there was rupture of right eye globe itself with shrinkage. Under Part I Schedule III of the Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 1997, item No.5, for very severe facial disfigurement, amount fixed is Rs.4,00,000/-. Therefore, tribunal fixed Rs.4,00,000/- after considering the medical certificates as well as seeing the claimant and satisfying by itself that there was severe disfigurement. Therefore the amount of compensation calculated needs no interference. 2. It was argued that the claimant is not entitled to get compensation as it is not an untoward incident. Section 123 (c) defines 'untoward incident' as follows: '["(c) 'untoward incident' means- (1) (i) the commission of a terrorist act within M.F.A.No.1/08 3 the meaning of Sub-section (1) of Section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987; or (ii) the making of a violent attack or the commission of robbery or dacoity; or (iii) the indulging in rioting, shoot-out or arson, by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station; or (2) the accidental falling of any passenger from a train carrying passengers'."] The admitted facts shows that the untruly more violently attacked and they were indulged in throwing stones and thereby the incident occurred. Under Section 124-A, compensation is payable when a passenger suffers injuries due to untoward incident except in case when it is a self inflicted injury or suicide. Negligence on the part of Railway need not be proved. Section 124-A reads as follows: ['124-A. Compensation on account of untoward incident - When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependent of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, M.F.A.No.1/08 4 notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident: Provided that no compensation shall be payable under this Section by the railway administration if the passenger dies or suffers injury due to- (a) suicide or attempted suicide by him; (b) self-inflicted injury; (c) his own criminal act; (d) any act committed by him in a state of intoxication or insanity; (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. Explanation:- For the purpose of this section, "passenger" includes- (i) a railway servant on duty; and (ii) a person who has purchased a valid ticket for travelling, by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident'] Admittedly none of the exceptions are applicable here and it is also an admitted fact that she was a bona fide passenger travelling and M.F.A.No.1/08 5 she suffered facial disfigurement apart form complete loss of one eye. In the above circumstances, the award of the tribunal is fully just and reasonable. We see no ground to interfere in the same, and hence, this appeal is dismissed. J.B.Koshy Judge K. Hema Judge prp M.F.A.No.1/08 6 J.B. KOSHY AND K.HEMA,JJ. ------------------------------------- M.F.A. No. of 2001 ------------------------------------- Judgment Dated:18th December, 2007