IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 18.11.2008 CORAM: THE HONOURABLE MR.JUSTICE S.PALANIVELU C.M.A.Nos.1477 of 2001 & 656 of 2002 C.M.A.No.1477 of 2001: 1. M.Nagendiran 2. Kamatchi ... Appellants/Applicants Vs. Union of India, Owning Southern Railway rep. by General Manager, Chennai 3. ... Respondent/respondent Prayer: Appeal filed under Section 23 of the Railway Claims Tribunal Act 54 of 1987, against the award dated 16.08.2001 passed in O.A.No.2000 00017 the file of the Railway Claims Tribunal, Chennai. For Appellants : Mr.T.Rajamohan For Respondent : Mr.R.Gunasekaran C.M.A.No.656 of 2002: A.Mangalam ... Appellant/Applicant Vs. Union of India, Owning Southern Railway rep. by General Manager, Chennai 3. ... Respondent/respondent Prayer: Appeal filed under Section 23 of the Railway Claims Tribunal Act 54 of 1987, against the award dated 08.02.2002 passed in O.A.No. 2000 00043 on the file of the Railway Claims Tribunal, Chennai. For Appellant : Mr.T.Rajamohan For Responden : Mr.R.Gunasekaran https://hcservices.ecourts.gov.in/hcservices/ C O M M O N J U D G M E N T In the claim petition in O.A.No.17 of 2000 (CMA No.1477 of 2001), the following are alleged:- The first applicant is the son and the second applicant is mother of the deceased S.Manoharan. The said Manoharan, while travelling by EMU train on 05.08.1999, accidentally fell down from it at Aavadi railway station at about 20.30 hours and he died at Government General Hospital, Chennai. Hence the petition for compensation has been filed by the legal heirs of the deceased. 2. In the claim petition in O.A.No.43 of 2000 (CMA No.656 of 2002), the following are stated:- The applicant is the mother of the deceased Shanmugam, who is said to have accidentally fallen from the moving EMU train on 14.08.2000 at 13.30 hours at KM 34/22-24. Hence, the application for compensation is filed. 3. The following are the allegations contained in the counters filed by the respondent/Southern Railway:- It is denied that the deceased Shanmugam died on the spot as mentioned by the claimant. There was no eye witness or chain pulling by co-passenger to prove that the deceased fell from the running train. The incident of falling from train was not reported by any passenger to the railway authorities. In the absence of eye witness, it is to be taken that the deceased died while crossing the railway track and therefore, the Souther Railway is not liable to pay compensation for the death of the trespassers. The appellants have to prove that the deceased were the bona fide passengers and the relationship of the claimants with the deceased has also to be established. Hence, the claim petitions have to be dismissed. 4. Considering the rival pleas, the Railway Claims Tribunal, Chennai Bench, dismissed both the claim petitions by observing that the claimants failed to prove that the deceased died in an untoward incident due to accidental fall from EMU train. 5. The accident in both the cases have taken place on different dates in timings and areas. The claimants' contentions are that while the deceased were travelling by the EMU train, they accidentally fell down from the train, thereby died. It is the uniform version of the Southern Railway that both the deceased met with their gruesome death while they crossed the railway line. Whether both the deceased died while they crossed the railway line is to be decided only with the available materials, since there was no eye witness before the Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 6. On a careful scrutiny of the features available in the post-mortem Certificates, it can safely be held that the death could have definitely been caused accidentally and due to sudden fall from the train alone and not by dashing of the train, while they crossed the railway line. The following are the findings contained in the autopsy report relating to the deceased S.Manoharan:- “1. Abrasion on right cheek 4 x 3 cm; on front of right leg 2 x 1cm; on front of right knee 1 x 0.5 cm; on outer aspect of right thigh 4 x 1cm; on front of left knee 2 x 0.5 cm. 2. Traumatic amputation of right big toe 3. Laceration 3 x 0.5cm x bone deep on right side of scalp; on top of middle of scalp 4 x 0.5cm x bone deep. On dissection of head: Extensive bruising of scalp tissues. Base of skull had fissured fracture 5 cms long on middle cranial fossa on left side. Brain had diffused bilateral sub dural and sub arachnoid haemorrhage with contusion. Bruising 4 x 3 x 0.5 cm on the left temporal lobe. HEART: Chambers contained fluid blood. Coronaries patent. LUNGS: Congested HYOID BONE: Intact STOMACH: Empty Mucosa-congested.” The observations found in the post morterm report pertaining to the deceased Shanmugam:- “1. Contusion Occipital Region of scalp 5 x 5 cm 2. Contusion over the Right eye brow 3 x 3 cm 3. Multiple abrasion over right axilla, right hip right thigh varying from 1 – 3 cm with grease marks. 4. Contusion with abrasion right forearm 10 x 5 cm. 5. Abrasion left forearm with peeling of skin 5 x 4 cm. 6. Cut of left wrist. 7. Contusion over the left thigh 6 x 5 cm with cut of thigh bone (femur). 8. Contusion with abrasion 10 x 6 cm left below knee joint. 9. Contusion with abrasion over right leg below knee join 10 x 5 cm stain of grease and mud over the injuries.” 7. Both the post-mortem certificates potray the injuries sustained by the deceased while they have fallen down from the train accidentally, which was running at the time of the accident. Had the individuals died while they crossed the railway line, their bodies https://hcservices.ecourts.gov.in/hcservices/ might have been mutilated and the injuries as found in the post-mortem certificates could not have been caused. In other words, it can be stated that the injuries as mentioned in the autopsy certificates could not have occurred, had the accident has taken place while the deceased were crossing the railway line as alleged by the respondent/Southern Railway. 8. In both the cases, while the inquest report was prepared, the Panchayatars have unanimously opined that the death was due to accidental fall from the moving train. 9. The learned counsel for the appellants would draw the attention of this court to various provisions in the Railway Act 1989 (herein in after referred as “Act”). For the purpose of deciding the matter in issue Sections 123 and 124-A of the Act are relevant and it is advantageous to extract them, which read thus:- “123. Definitions.- In this Chapter, unless the context otherwise requires,- (a) “accident” means an accident of the nature described in Section 124; (b) “dependant” means any of the following relatives of a deceased passenger, namely:- (i) the wife, husband, son and daughter, and in case the deceased passenger is unmarried or is a minor, his parent; (ii) the parent, minor brother or unmarried sister, widowed sister, widowed daughter-in-law and a minor child of a predeceased son, if dependant wholly or partly on the deceased passenger; (iii) a minor child of a predeceased daughter, if wholly dependant on the deceased passenger; (iv) the paternal grandparent wholly dependant on the deceased passenger. (c) “untoward incident” means- (1) (i) the commission of a terrorist act within the meaning of sub-section (1) of Section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 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, cloakroom 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.” https://hcservices.ecourts.gov.in/hcservices/ 124-A. Compensation on account of untoward incidents.- When in the course of working of a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect of default on the part of the railway administration such as sould entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, 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 purposes 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.” 10. From the above said provisions of law, it is deducible that falling from a train carrying passengers accidentally is an “untoward incident”. This Court is of considered opinion that both the deceased fell down from the moving train accidentally and hence the death was the out come of an “untoward incident”. 11. Section 124A of the Act provides for compensation on account of “untoward incident” and Sub Sections (a) to (e) further set out the death by other means, which disqualify grant of compensation by the railways. It is pertinent to note that the accidental fall, which is an “untoward incident” has not been included and hence if anyone died by an accidental fall from the train, he is entitled for compensation from the railways. https://hcservices.ecourts.gov.in/hcservices/ 12. It is the further version of the Southern Railway that the deceased were unauthorised passengers and that no ticket was recovered from the scene of occurrence, even though other articles were seized. The above said contention does not stand for a minutes scrutiny for the reason that when a person accidentally fell down from the train and sustained injuries, there must be every chance for missing of the ticket. 13. The learned counsel for the appellant would contend that the burden of proof lies on the respondent/railways to prove that the deceased were the ticketless passengers at the time of accident, but in this case they failed to prove the same. In support of his contention, the learned counsel for the appellants/claimants relied on a decision reported in 2001 (1) T.N.L.J.146 (D.Rajathi and others v. Union of India owning Southern Railway, rep. by its General Manager, Chennai.), in which, this Court has held that in so far as the the claim for ticketless travellers is concerned, the burden casts upon the railway administration, and when the railway fails to prove the same, the presumption is that the deceased was a bona fide passenger. 14. In a decision reported in 2008 (1) KLJ 623 (K.V.Thomas v. Union of India), a Division Bench of the Kerala High Court has held that mere negligence on the part of the bona fide passengers is not a ground to deny the compensation for untoward incident. Like Section 163A of the Motor Vehicles Act, strict liability is cast on the railway administration for payment of compensation. It is further observed that the negligence of the claimant cannot dis-entitle him from claiming compensation under Section 124A of the Act. 15. An identical view has been taken in the cases reported in 2004 ACJ 713 (Agam Shanthamma v. Union of India, rep. by General Manager, South Central Railway.) and in AIR 2007 Rajasthan 38 (Union of India v. Hari Narayan Gupta & another). 16. From the above said decisions, it could be seen that it is the consistent view of various High courts that in the like cases, it is for the railways to show that the deceased was a ticketless passenger and he was not a bona fide passenger and in case of the failure on the part of the railways, it must be presumed that the deceased was a bona fide passenger. Adverting to the cases on hand, the railways has not produced any materials to infer that the deceased were not bona fide passengers. Hence, it has to be inevitably presumed that the deceased were bona-fide passengers and the dependants are entitled for compensation. 17. In view of the above discussions and observations and in the light of the above referred legal principles, this court is of the considered view that the deceased were bona fide passengers and they met their end by accidental falling from the moving train and https://hcservices.ecourts.gov.in/hcservices/ hence their dependants are entitled for compensation. Hence, the Judgements passed by the Railway Claims Tribunal in both the cases suffer from legal infirmities, which deserve to be interfered with by this Court. This Court upsets the upshots of the Railways Claims Tribunal and these appeals have to be allowed. 18. Accordingly, both the appeals are allowed and the Judgements dated 16.08.2001 and 08.02.2002 passed by the Railways Tribunal in O.A.Nos.17 and 43 of 2000 are set aside and the respondent/railways is directed to pay a sum of Rs.4,00,000/- to the dependants of the deceased in each claim petition. 19. As regards the rate of interest payable on compensation to the claimants, following the decision of the Hon'ble Apex Court reported in 1993 ACJ 235 (SC) (A.A.Haja Muniuddin v. Indian Railways) and the decision of a Division Bench of the Madhya Pradesh High Court reported in 1995 ACJ 644 (MP) (Union of India v. Laxmi Pati), it is held that the claimants in these cases are entitled to interest for the compensation amount at the rate of 12% per annum from the date of application. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To: 1. The Railway Claims Tribunal, Chennai Bench, Chennai. 2. The Section Officer, V.R.Section, High Court, Madras. 2 cc To Mr.T.Rajamohan, Advocate, SR.64328, 64329. C.M.A.Nos.1477 of 2001 & 656 of 2002 RSI(CO) RVL 31.12.2008 https://hcservices.ecourts.gov.in/hcservices/