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 9TH MARCH 2010 / 18TH PHALGUNA 1931 MFA.No. 195 of 2009(U) ---------------------- OA.5/2008 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): RESPONDENT IN OA ------------------------------ UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI. BY ADV. SRI.N.B.SUNIL NATH,SC, RAILWAYS RESPONDENT(S): APPLICANTS ------------------------------- 1. MALATHI, W/O.LATE RAVI, SRILAKIZHANTHANELLUR, KATTAMANNAR KOLL TALUK, CUDALUR, TAMIL NADU-608 302. 2. KISHORE KUMAR, S/O.LATE RAVI, (MINOR AGED 11 YEARS) REPRESENTED BY HIS MOTHER, MALATHI, DO. DO. 3. UTHRANAM, MOTHER OF LATE RAVI, DO. DO. ADV. SRI.A.K.MADHAVAN UNNI FOR R1,2 & 3 THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 09/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.F.A. No.195 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of March, 2010 JUDGMENT Barkath Ali, J. Challenge in this appeal under Section 23 of Railway Claims Tribunal Act is to the judgment dated June 19, 2009 in O.A.(Illu)No.5/2008 of Railway Claims Tribunal, Ernakulam Bench awarding a compensation of Rs.4lakhs with interest @ 7.5% per annum from the date of application to the applicants for the loss caused to them on account of death of one M.Ravi in an untoward incident involving the railway. 2. The facts in brief are these: The respondents/applicants are the wife, minor son and mother of deceased Ravi. They filed the application under Section 16 of Railway Claims Tribunal Act against the appellant/Railway Administration for payment of compensation for the death of deceased M.Ravi on the ground that they are the dependents of deceased who died as a result of the injury sustained by him in an untoward incident which occurred on MFA.No.195/2009 2 August 6, 2005 at 00.35 hours at Parappanangadi Railway Station involving a passenger train bearing No. 6627, Chennai-Mangalore Express. The case of the applicants was that deceased was travelling in Chennai-Mangalore Express on 06/08/2005 with a valid II Class unreserved ticket which was lost during the course of the incident and that near Parappanangadi Railway station deceased slipped and fell down from the running rain and that due to the injury sustained, he died. 3. The appellant/railway administration filed a reply statement contending that the train has no stop at Parappanangadi, that when the train was passing through the said station, the deceased attempted to get down from the moving train and fell down and succumbed to the injuries , that the incident does not attract the provisions of accidental falling from the train and that therefore the appellant/respondent is absolved of its liability under Clause (b) of the proviso to Section 124 A of the Act. 4. The first applicant was examined as PW1 and claimants produced Exts.A1 to A8 before the Tribunal. The appellant/Railway MFA.No.195/2009 3 did not adduce any evidence. On an appreciation of evidence, the Tribunal found that deceased was a bonafide passenger in the train and he died as a result of an untoward incident and therefore claimants are entitled for compensation and awarded a compensation of Rs. 4 lakhs with interest @ 7.5% per annum from the date of petition till realisation. The Railway Administration has come up in appeal challenging the said judgment of the Tribunal. 5. Heard the standing counsel for Railways/the appellant and the counsel for the respondents/claimants. 6. The following points arise for consideration : 1) Whether the deceased was a bonafide passenger of the train in question ? 2) Whether he died as the result of the untoward incident as alleged by the claimants ? 3) Whether the judgment of the Tribunal can be sustained ? 7. Counsel for the appellant/Railways argued that the claimants have not produced the journey ticket of the deceased and has not proved that claimant was a bonafide passenger of the train in MFA.No.195/2009 4 question, that as the train has no stop at Parappanangadi, the deceased might have attempted to get down from the moving train and that therefore, the Railways is absolved of the liability as provided under Clause (b) of the proviso to Section 124 A of the Railways Act. 8. Counsel for the respondents/applicants on the other hand supported the judgment of the Tribunal. Points 1 to 3 9. First applicant was examined as PW1 and the S.I. of Police, Parappanangadi who registered the criminal case in respect of the incident was examined as PW2 on the side of the applicants. PW1 is not an eye witness to the incident. It is seen from Ext.A9, copy of the final report and Ext.A10, the copy of the FIR that the Station Master of Parappanangadi Railway Station had informed the concerned police that while Chennai-Mangalore Express bearing No.6627 passing through Parappanangadi railway station at 00.35 hrs. on August 6, 2005, a passenger fell down from the running train and was found dead on Road No.1 near Station House and a pocket book with the name written in Tamil -M.RAvi was also found. Further in the reply MFA.No.195/2009 5 statement, the Railway has admitted that the deceased was a passenger of the said train. But their case is that he might have attempted to get down from the moving train and fell down. Therefore, the fact that the deceased was a bonafide passenger of the train in question is clearly proved even though the applicants did not produce the Railway ticket of the deceased. No evidence is adduced on the part of the Railways to show that the deceased sustained injuries while attempted to get down from the moving train. That being so, the Tribunal is perfectly justified in holding that the deceased was a bonafide passenger of the train and that he died due to the fall from the train which comes within the definition of “an untoward incident” under Section 123 ( c) (2) of Railways Act. 10. An attempt was made on the side of the counsel for the appellant to bring the case within the exception provided in Clause ( C) of proviso to Section 124 A which provides that no compensation shall be payable, if the passenger dies or suffers injury due to his own criminal act. But no evidence is adduced by the Railways before the Tribunal to prove the above aspect. MFA.No.195/2009 6 11. The fact that the applicants are the dependents of the deceased is not disputed and that as per the Compensation Rules, they are entitled to a compensation of Rs. 4 lakhs. 12. In the result, we confirm the impugned judgment of the Tribunal awarding compensation to the claimants. It follows that the appeal is devoid of any merit and has to be dismissed. Respondents/applicants will be entitled to cost. The Appeal is dismissed with cost. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MFA.No.195/2009 7