IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 MFA.No. 80 of 2009(A) --------------------- OA.61/2006 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT: -------------- UNION OF INDIA REPRESENTED BY GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI. BY ADV. SRI.N.B.SUNIL NATH,SC, RAILWAYS RESPONDENTS: --------------- 1. JESSY K.R., W/O.P.D.ABRAHAM @ SAJAN, PARATHUNDIYIL HOUSE, VELOOPADAM, VARANTHARAPPILLY, MUKUNDAPURAM, THRISSUR DISTRICT. 2. JOFFY SAJAN (MINOR), S/O.P.D.ABRAHAM @ SAJAN, DO, DO. REPRESENTED BY 1ST RESPONDENT GUARDIAN 3. JICKSON SAJAN (MINOR), S/O.P.D.ABRAHAM @ SAJAN DO, DO, REPRESENTED BY 1ST RESPONDENT GUARDIAN ADV. SRI.C.A.CHACKO FOR R1-3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A.No. 80 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of August, 2009 JUDGMENT Joseph Francis, J. The appellant is the respondent in O.A.No. 61 of 2006 on the file of the Railway Claims Tribunal, Ernakulam and the respondents herein are the applicants in the said case. 2. The respondents herein are the wife and children of late P.D.Abraham @ Sajan. They filed an application for compensation for the death of late P.D. Abraham @ Sajan, who died in an untoward incident, which occurred on 8.2.2005 near Mulanthuruthy Railway Station. It was alleged that the deceased was travelling in Train No.6355 Gandhidham - Nagercoil Express from Trichur to Trivandrum on 8.2.2005 and during the course of the journey, he fell down from the train, thereby sustained M.F.A.No. 80 of 2009 2 serious injuries, to which he succumbed at Km 17/8-9 situated near Mulathuruthy Railway station. 3. The appellant herein filed reply statement contending that the deceased was not a bonafide passenger, that the body of the deceased was found lying at 15 meters away from the track on 8.2.2005 and that no person can fall down from the train unless he travels on the foot board or standing near the door of the running train. The respondents are not entitled to get any compensation as claimed . Annex.A1 is the reply statement filed by the Railway before the Railway Claims Tribunal. 4. On the side of the applicant, PW1 was examined and Exts.A1 to A10 were marked. RW1 was examined and Exts.R1 to R2 were marked on the side of the respondents. The Tribunal allowed the application, as per judgment dt.31.10.2008, directing the appellant herein to pay a sum of Rs. 4 lakhs together with interest at the rate of 9% from the date of filing of the application. Against that judgment, the respondent filed this appeal. M.F.A.No. 80 of 2009 3 5. Heard the learned counsel for the appellant and the learned counsel for the respondents. 6. The learned counsel for the appellant submitted that the body of the deceased was found at about 15 meters away from the Railway track and the Claims Tribunal ought to have found that the deceased was not a bonafide passenger. Whereas the learned counsel for the respondents supported the judgment. 7. The learned counsel for the respondents invited our attention to the decision reported in Joji C. John v. Union of India (2002 (1) KLT 678), in which it was held: “When there is 'untoward incident' even when no negligence is proved on the part of Railway Officers, Railway is liable to pay compensation as prescribed in the schedule. See S.124A and 123(c) of the Railways Act, 1989 as amended by Railways (Amendment) Act, 28 of 1994. Even if there is no negligence on the part of the Railway employees, it cannot be presumed that M.F.A.No. 80 of 2009 4 injuries caused to the victim of the accident are self inflicted injuries so as to deny compensation as provided under Railway Accidents and Untoward Incidents (Compensation) Rules, 1990. In the above circumstances, the burden is on the Railway to prove that claimant is not a bonafide passenger.” 8. In the decision reported in Union of India v. Prabhakaran Vijaya Kumar (2008 (2) KLT 700) (SC), it was held “It will not legally make any difference whether the deceased was actually inside the train when she fell down or whether she was only trying to get into the train when she fell down. In our opinion, in either case it amounts to an 'accidental falling of a passenger from a train carrying passengers'. Hence, it is an 'untoward incident' as defined in S.123(c) of the Railways Act. No doubt, it is possible that two M.F.A.No. 80 of 2009 5 interpretations can be given to the expression 'accidental falling of a passenger from a train carrying passengers', the first being that it only applies when a person has actually got inside the train and thereafter falls down from the train, while the second being that it includes a situation where a person is trying to board the train and falls down while trying to do so. Since the provision for compensation in the Railway Act is a beneficial piece of legislation, in our opinion, it should receive liberal and wider interpretation and not a narrow and technical one. Hence in our opinion the latter of the above mentioned two interpretations i.e. the one which advances the object of the statute and serves its purpose should be preferred. If we adopt a restrictive meaning to the expression 'accidental falling of a passenger from a train carrying passengers' in S.123(c) of the Railways Act, we will be depriving a large number of railway passengers from getting compensation in railway accidents. It is well known that in our M.F.A.No. 80 of 2009 6 country there are crores of people who travel by railway trains since everybody cannot afford traveling by air or in a private car. By giving a restrictive and narrow meaning to the expression we will be depriving a large number of victims of train accidents (particularly poor and middle class people) from getting compensation under the Railways Act. Hence, in our opinion, the expression 'accidental falling of a passenger from a train carrying passengers' includes accidents when a bonafide passenger i.e. passenger traveling with a valid ticket or pass is trying to enter into a railway train and falls down during the process. In other words, a purposive, and not literal, interpretation should be given to the expression.” 9. In the present case, the first applicant filed proof affidavit stating that her husband fell down from the train due to heavy jerking of the train. Ext.A7 is the copy of the final report and Ext.A9 is the copy of investigation report filed by the police before the Sub Divisional Magistrate Court, Fort Kochi M.F.A.No. 80 of 2009 7 which would show that the death of P.D.Abraham @ Sajan, an employee of the Water Authority at Km 17/8-9 near Mulanthuruthy Railway Station was occurred on account of his fall from Train No.6335 Gandhidham - Nagercoil Express and consequent injuries sustained in such fall and no other suspicion could be detected and it was a case of accidental death. Ext.A4 is the copy of the postmortem report, which shows that the cause of death was on account of the multiple injuries, including head injury and injuries to the vital organs. 10. The evidence adduced on the side of the Railway Administration will not prove that the deceased had died because of suicide or attempt to commit suicide or as a result of any self inflicted injury or by his own criminal act or that the death was caused by any natural means or medical or surgical treatment. Therefore, the appellant cannot be given the benefit of the five exceptions mentioned in Section 124A of the Railwas Act, 1989. Therefore, from the evidence on record, we are of the view that the M.F.A.No. 80 of 2009 8 learned Railway Claims Tribunal has rightly concluded that the case falls under the definition 'untoward incident' as contained in Section 123(1) (c) and 123(2) of the Act. Therefore, this appeal is liable to be dismissed, as it is without any merit. 11. Accordingly, this appeal is dismissed. There is no order as to cost. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm