IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 MFA.No. 206 of 2008 --------------------- ( OA.67/2004 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM) .................... APPELLANT/RESPONDENT: ----------------------------- UNION OF INDIA, REP. BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI-3. BY ADV. SRI.M.C.CHERIAN,SR.SC., RAILWAYS RESPONDENTS/APPLICANTS: ------------------------------------ 1. RAJAMMA, NALLAVEETTIL, MUTHUKULAM VILLAGE,ALLEPPEY. 2. GEETHAKUMARI(MARRIED) NALLAVEETTIL MUTHUKULAM VILLAGE, ALLEPPEY. 3. GIRISH KUMAR, NALLAVEETTIL MUTHUKULAM VILLAGE ALLEPPEY. R1 AND R2 BY ADV. SRI.M.P.KRISHNAN NAIR R3 BY ADV. SRI.T.N.SUKUMARAN THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 07/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ................................................................................ M.F.A. No. 206 OF 2008 ......................................................................... Dated this the 7th October, 2009 J U D G M E N T P.R. Raman, J: Dependants of the deceased Gopakumar, who was aged 35 years, had filed an application under Section 16 of the Railway Claims Tribunal Act, 1987 claiming compensation, inter alia contending that the death of Gopakumar happened only as a result of a railway accident. The incident is said to have taken place on 19.07.2003. It was their case that the deceased was travelling from Alleppey to Haripad in Train No. 337 and accidentally fell down from the moving train and died due to severe head injury. According to them, other belongings including the ticket of the deceased lost in the accident. This was denied by the respondents in their counter affidavit. It is stated in the counter affidavit that the deceased was found lying in the middle of the track, without ticket, at a place, about 4Kms away M.F.A. No. 206 OF 2008 2 from the Haripad Railway Station; that the alleged incident was not reported to the Station Master, Driver or Guard; that there was no chain pulling by any co-passenger; that the Guard who worked in the Train No.337 confirmed that no such incident of falling from the train occurred on 19.07.2003 ; that in the event of falling from the train, the body will be thrown out either to the right side or the left side of the track and not in the middle of the track; that the injuries found in the body of the deceased confirms that the deceased committed an act of suicide and that there was no eye witness to the incident. Therefore, according to the respondents, it was not an accident and that the claimants failed to establish that the deceased was a bonafide passenger since they could not produce the ticket. 2. The evidence consists of sworn testimony of P.W.1 and R.W1. Exhibits A1 to A7 were marked on the side of the claimants/applicants and Ext. R1 was marked on the side of the respondent. 3. Based on the oral testimony of P.W1 and also on the basis of the affidavit filed by one Krishnan, the Tribunal found M.F.A. No. 206 OF 2008 3 that the deceased was a bonafide passenger. It is seen from the affidavit filed by Krishnan that a Plat Form ticket for him and a travelling ticket for the deceased was purchased by the deceased himself. Though an affidavit has been filed, he was not made available for cross examination. No other co-passenger or anybody witnessing the accident was examined in the case. The given circumstances and facts raises doubt as to whether it could be an accidental death. 4. As already observed, even the person, who is said to be a witness of buying the ticket, was not examined in the case and the claimants have not discharged their burden of proof in showing that the the deceased was a bonafide passenger. Hence the finding of the Tribunal, based on the available evidence cannot be sustained. 5. As regards the alleged accident, the postmortem certificate issued by Asst. Surgeon was relied on by the Court below. The oral testimony of P.W.1 that the deceased, while travelling in Ernakulam-Kayamkulam Passenger from Alleppey to Haripad, accidentally fell down from the train and succumbed to M.F.A. No. 206 OF 2008 4 injuries. P.W.1 is not an eye witness to the accident. The postmortem certificate only shows that the death is due to head injury. Therefore, there is no acceptable evidence to show that it was an accidental death. 6. May be true, that the Guard might not have been informed of the accident. Normally, when a person falls down from a train accidentally, the co-passengers, on noticing such accident, will pull the chain and the matter will be reported to the next station. In this case, no such incident is seen reported. There is no material on record to show, as to how it could be said that it was an accidental death. Therefore, better evidence is required before entering into any finding that it was an accidental death. The finding of the Court below in this regard is found to be perverse and therefore, it is set aside. 7. In the said circumstances, the order of the Tribunal is set aside and the matter is remanded for fresh consideration except on Issue Nos. 5 and 6, regarding the entitlement of the claimants to get the amount, as also the quantum. The parties shall appear before the Tribunal on 09.11.2009. The Tribunal M.F.A. No. 206 OF 2008 5 shall dispose of the matter, after affording an opportunity of being heard to both the sides and render a fresh finding, based on the totality of the evidence available in the case. The Appeal is thus allowed by way of remand as indicated above. P.R. RAMAN, JUDGE. P.R. RAMACHANDRA MENON, JUDGE. lk