IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 MFA.No. 9 of 2005() ------------------- OA.42/1999 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): APPLICANTS 2 TO 4: ----------------- 1. K.P.SANTHA, W/O. RAVI MENON, VALLIKKAT HOUSE,KAPPUR PANCHAYAT, P.O. KALLADATHUR VIA. KUMARANALLUR, PALGHAT DISTRICT. 2. KRISHNADAS K.P., S/O. RAVI MENON, VALLIKKAT HOUSE, KAPPUR PANCHAYAT,P.O. KALLADATHUR VIA. KUMARANALLUR, PALGHAT DISTRICT. 3. DHANYA K.P., D/O. RAVI MENON, VALLIKKAT HOUSE, KAPPUR PANCHAYAT,P.O. KALLADATHUR VIA. KUMARANALLUR, PALGHAT DISTRICT. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT(S): RESPONDENT: ------------------- UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI. BY ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 07/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON, JJ. ------------------------------- M.F.A.(Railways) No. 9 of 2005 ------------------------------- Dated this the 7th December, 2009 J U D G M E N T Raman, J. Appellants are the applicants 2 to 4 in O.A.No.42 of 1999, on the file of Railway Claims Tribunal, Ernakulam. The application was preferred claiming compensation for the death of one Pramod, aged 24, who is stated to have died, as a result of an untoward incident, as per 123 (c)(2) of the Railways Act, 1989 (hereinafter referred to as 'the Railways Act'). 2. The first applicant who is the father of the deceased died during the pendency of the proceedings. Applicants 2 to 4 are stated to be the legal heirs of the deceased. The incident occurred on 24.12.1998. The deceased was a passenger in the West Coast Express No.6627, and he boarded the train from Kuttipuram and was proceeding to Mangalore. When the train reached Manjeswar on 24.12.1998, though it was M.F.A.(Railways) No.9 of 2005 2 an unscheduled stop, the train was stopped. The deceased got out of the train and went to the platform situated in the opposite side, since the platform where the train stopped did not have a tea shop. After taking the tea, while returning to the compartment, Parasuram Express came from the other side, hit against the deceased, causing grievous injuries and succumbed to the same. But in paragraph 6 of the impugned judgment, it was specifically stated as follows:- “The deceased Pramod was a passenger in West Coast Express Train No.6627 from Kuttipuram to Mangalore and he met with an accident at Manjeswar Railway station while crossing the Parasuram Express Train No.6350 in the morning of 24.12.1998”. But while examining PW.1, mother of the deceased, she deposed that the accident occurred when, Pramod after returning from the tea shop was about to enter West Cost Express, he fell down and ran over by Parasuram Express. PW.2 is stated to be the friend of the deceased. According to him, both of them alighted from the compartment, when the train stopped at Manjeswaram, and went for tea to the tea stall on the opposite side and M.F.A.(Railways) No.9 of 2005 3 returned to their seats while the Parasuram Express came and run through the station. 3. The Tribunal found that since the death occurred as a result of hit by another train, while crossing the track, and therefore, if PW.2 had entered the compartment and the deceased was following him, as stated by him, it is improbable to believe his version that the deceased fell down while entering the compartment, due to the hit of Parasuram Express. It further held that on the testimony of RW.1 corroborated by Exts.R1 and R1(a) produced, the evidence is seen to be more probable and the probability is that Pramod was knocked down by Parasuram Express , while he was crossing the rail track to get into the compartment of West Coast Express in which he was a passenger. There was no occasion that he accidentally fell down from any train rather he was hit by a loco of the approaching train. Therefore, the Tribunal held that the applicant failed to prove that the deceased sustained injuries and succumbed to the same, as in an untoward accident, as defined under Section 123(c) of the Railways Act. M.F.A.(Railways) No.9 of 2005 4 4. The fact that the deceased was a bona fide passenger in West Coast Express is beyond dispute, on the evidence on record, as found by the Tribunal. The crucial question is as to what is the cause of the accident resulting in the injury sustained by the deceased ? Was it as a result of the deceased falling from the train carrying him as a passenger?, or was it due to the hit by the Parasuram Express, while crossing the track? The burden is on the claimants to prove what exactly had happened. Admittedly, the West Coast Express was stopped at Manjeshwar and according to the appellants and as spoken to by PW.2, the deceased along with PW.2 went to the platform of the other side for taking a cup of tea. PW.2 however managed to return and get into the compartment, whereas the deceased while crossing the track was hit by the Parasuram Express. This probability is more in the light of the evidence in the case. We say so because when there are two plat forms at Manjeshwar and West Coast Express having stood in one of the plat forms, and other train coming from the other direction, passed through the other railway track situated on the side of the opposite platform, in between the two rails, normally there would be some space. M.F.A.(Railways) No.9 of 2005 5 Therefore, the probability of the passenger falling down and ran over by the incoming train is ruled out. On the other hand, if he could not cross over the rail, necessarily, since Parasuram Express has no stop in the said station, could have hit the deceased. We find that the view taken by the Tribunal is a probable one and it cannot be said to be wrong. Since the claimants could not prove that the accident occurred as a result of any fall from the train as a gratuitous passenger, it cannot be treated as a untoward incident as defined under Section 123(c) (2) of the Railways Act. We find no merit in the appeal and it is accordingly dismissed. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE. nj.