IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 8TH DECEMBER 2010 / 17TH AGRAHAYANA 1932 MFA.No. 275 of 2009() -------------------------------- OA.13/2007 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): ----------------------- 1. VARKEY, AGED 53 YEARS S/O.JOSEPH POZHAMANGALATHU, KEZHUVANKULAM P.O.KOTTAYAM. 2. ROSAMMA, AGED 51 YEARS, W/O.ANNAMMA JOSEPH, POZHAMANGALATHU, KEZHUVANKULAM, P.O.KOTTAYAM. BY ADV. SRI.MARTIN G.THOTTAN RESPONDENT(S): --------------------------- UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI. BY ADV. SRI.SUBAL J.PAUL, SC, RAILWAYS THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03/11/2010, THE COURT ON 08/12/2010 DELIVERED THE FOLLOWING: rs K.M.JOSEPH & M.C.HARI RANI, JJ. * * * * * * * * * * * * * M.F.A.No.275 of 2009 ---------------------------------------- Dated this the 8th day of December, 2010 J U D G M E N T `CR' M.C.HARI RANI,J The petitioners in O.A.No.13/07 before the Railway Claims Tribunal, Ernakulam Bench are the appellants. On 20/2/2004 at 8.30 p.m Sri.Tiby George, the son of the appellants died in a train accident near Madukarai station while he was travelling in Train No.6525 Island Express from Kottayam to Bangalore. The appellants made a claim of Rs.4,00,000/- towards compensation. The Claims Tribunal disallowed the claim and the petition was dismissed. Aggrieved by the above judgment, the petitioners filed a review petition and the same was also dismissed with costs. Hence this appeal. 2. The case of the appellants was that on 20/2/2004, Sri.Tiby George, the son of the appellants, while travelling in Train No.6525 Island Express from Kottayam station to Bangalore, accidentally fell down from the train when the train reached near Madukarai station and died of the head injury M.F.A.No.275 of 2009 2 sustained on him. He was a bona fide passenger holding a reserved ticket bearing No.65372085 in S9 coach. The appellants' son Sri.Tiby George was a student in Florence School of Nursing, Bangalore. As part of his studies, he had to undergo Psychiatric course for a period of six months and he was undergoing the said course at Thiruvalla Mission Psychiatric hospital. In the midst of the course, in order to appear for the examination at Bangalore, the deceased, along with other students, booked ticket from Thiruvalla to Bangalore. On 20/2/2004, though the ticket was booked from Thiruvalla, the deceased boarded the train from Kottayam since the appellants were residing there. The number of the ticket in which the deceased was travelling was 65372085 and the same was valid for traveling from Thiruvalla to Bangalore. Photocopy of the ticket was produced by the appellants before the Claims Tribunal as Ext.A5. The untoward incident occurred on 20/2/2004 at 8.30 p.m and the deceased accidentally fell down near Madukarai station and died of the injuries. Thus the appellants claimed a total compensation of Rs.4,00,000/-. 3. The main contention of the respondent in the reply statement filed was that the deceased travelled near the door M.F.A.No.275 of 2009 3 way keeping the door opened and fell down due to his own careless and negligent act. In spite of warnings, the deceased travelled without precaution to safety and fell down due to his careless and negligent act and the respondent is not liable and is absolved from liability under Section 124A(b) of the Railways Act 1989. It was also contended that the inquest report and final report prepared by the police regarding the said accident in Crime No.38/04 revealed that the deceased travelled in reserved coach No.9 from Thiruvalla and came to Coach No.2 to see his friends and while throwing banana skin fell down from the train. According to the respondent, the enquiry made by the Railway officials revealed that the deceased did not report in S9 coach upto Madukarai station and was marked as not joined. The respondent denied that the appellants are the only dependents of the deceased. 4. The Tribunal framed necessary issues. The evidence consists of the oral testimony of PW1 and Exts.A1 to A7 for the appellants and that of the oral evidence of RW1 and Ext.R1 on the side of the respondent. Issue No.2 considered by the Tribunal was “whether the deceased was a bona fide passenger in Train No.6525 on 22/02/2004 from Kottayam to Bangalore as M.F.A.No.275 of 2009 4 alleged.” After considering the evidence adduced in the case, the Tribunal found that all evidence tendered in this case indicate that an accident took place on 20/02/2004; but the applicants in O.A have stated in paragraph 6 of their application that the accident took place on 22/02/2004. According to the Tribunal, if it was a mistake, it would have been amended by the applicants and for the reason that no amendment has been made, the evidence adduced on the side of the applicants does not support their claim and if at all an incident had taken place, it was on 20/2/2004. The non-filing of the SM's memo to prove that the incident was reported to the Station Master then and there and the non-production of the police investigation report, spot Panchanama or inquest Panchanama and the non- mentioning in the postmortem report to indicate that the deceased was a victim of any railway accident etc. were relied on by the Claims Tribunal and found that the applicants/appellants were not entitled to any compensation from the respondent. 5. Heard the learned counsel for the appellants and the learned Standing counsel for the respondent. 6. The question for consideration is whether Tibi George died in an untoward incident occurred while he was travelling in M.F.A.No.275 of 2009 5 train No.6525, Island Express at Madukarai Railway Station? The learned counsel for the appellants submitted that on 20/2/2004 the deceased was travelling in the above train and at 8.30 p.m when the train reached near Madukari Railway Station, he fell down and died due to the head injury. The case of the Railway was that the deceased fell down due to his own careless and negligent act of travelling near the doorway keeping the door open and hence the respondent is not liable and is absolved from liability under Section 124(A) (b) of the Railways Act, 1989. It was argued by the learned Standing Counsel for the respondent that the date of the accident was stated in the application as 22/2/2004 and no evidence was adduced to prove the same. So also no steps were taken to correct the date, if it was a mistake. As such the appellants are not entitled to any compensation. Chapter XIII of the Railways Act, 1989 deals with the Liability of Railway Administration for Death and Injury to Passengers due to Accidents. S.123, the first section of the Chapter, has the definition clauses, Cl.(c) defines “untoward incident” which in so far as relevant for the present case is as under: M.F.A.No.275 of 2009 6 “123(c) untoward incident means: (1) (i) xxxxxxxxxxxx (ii) xxxxxxxxxx (iii) xxxxxxx (2) the accidental falling of any passenger from a train carrying passengers. S.124A of the Act provides as follows:- “124A- Compensation on account of untoward incident – When in the course of working in a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damanges in respect thereof, the railway administration shall, notwithsanding 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 the section by the railway administration if the passenger dies or suffers M.F.A.No.275 of 2009 7 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 purpose 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”. 7. In the reply statement filed by the respondent as also in the testimony of RW1, it is not denied that Tibi George fell down from the train and died while travelling on it on a valid ticket. The contention of the respondent was that the inquest report and final report prepared by the police revealed that Tibi George travelled in reserved coach No.9 from Thiruvalla and came to coach No.2 to see his friends and while throwing M.F.A.No.275 of 2009 8 banana skin, he fell down from the train. It was further contended by the respondent that the deceased had not reported in S9 coach upto Madukarai and he fell down from Coach No.2 and the accident occurred due to his own careless and negligent act and he travelled near the door way keeping the door open. Thus, admittedly, the deceased was 'a passenger' for the purpose of S.124A as clarified by the Explanation. Under S.124A, the liability to pay compensation is regardless of any wrongful act, neglect or default on the part of the railway administration. But as per the proviso to the section, the railway is not liable to pay any compensation if the passenger died or suffered injury due to any of the reasons mentioned in Clauses (a) to (e). The respondent herein has no such contention that the death of Tibi George was a case of suicide or a result of self inflicted injury. So also the respondent has no case that he died due to his own criminal act or he was in a state of intoxication or he was insane, or he died due to any natural cause or disease. His falling down from the train was, thus, clearly accidental. A criminal act mentioned in clause(c) to the proviso to S.124A must have an element of malicious intent or mensrea. Standing at the open door and travelling in another coach in the same M.F.A.No.275 of 2009 9 train and not in the particular seat of the reserved coach, that is instead of the reserved S9 Coach, travelling in S2 coach by the deceased after carrying a valid ticket for the journey from where he fell down are not criminal acts so as to absolve the railway from liability to pay compensation to the appellants. 8. Respondent admitted that Tibi George fell down from the train but his fall was attributed to his own negligence. The contention of the railway was that as the accident occurred as a result of the negligent act of the deceased, it would not come within the ambit of S.124A of the Railways Act and as such the appellants are not entitled to any compensation. On the otherhand it is submitted by the learned counsel for the appellants that the accident in which Sri Tiby George died did not occur because of any of the reasons mentioned in clauses (a) to (e) of the proviso to S.124A, it would definitely come within the purview of the main body of S.124A of the Railways Act, and not its proviso. 9. The learned counsel for the appellants relied on the decision reported in Union of India V. Prabhakran Vijaya Kumar (2008(2) KLT 700) wherein it was held that: “ S.124A lays down strict liability or no fault M.F.A.No.275 of 2009 10 liability in case of railway accidents. Hence, if a case comes within the purview of S.124A it is wholly irrelevant as to who was at fault”. 10. An untoward incident as defined in Section 123 of the Railways Act would include the accidental falling of any passenger from a train carrying passengers. S.2(29) of the Railways Act defines 'passenger' to mean a person travelling with a valid pass or ticket. Section 123(c) of the Act defines 'untoward incident' to include the accidental falling of any passenger from a train carrying passengers. S.124A deals with the compensation on account of death due to an untoward incident. The evidence adduced in this case would reveal that on 20.2.2004, the deceased boarded the train (Island Express) at Kottayam with his destination at Bangalore and was travelling in the train with a valid ticket and at 8.30 pm, when it reached near Madukarai, he fell down and died due to head injury sustained on him. The evidence would further reveal that he was a student in Florence School of nursing in Bangalore and at the time of accident, he was undergoing Psychiatry course as part of his study at the Thiruvalla Mission Psychiatric Hospital. In the midst of the course he along with other students booked the tickets from Thiruvalla to go to Bangalore to appear for M.F.A.No.275 of 2009 11 examination. The parents of the deceased were residing at Kottayam and he boarded the train from Kottayam, though the ticket was booked from Thiruvalla. The testimony of RW1 also was to the effect that the deceased fell down from S2 coach of the train while it was leaving Madukarai Station and the train was stopped due to the chain pulling and he recorded the ticket number of the passenger who fell down. That accident according to RW1 happened on 20.2.2004 while he was on duty as TTI of 6525 express train from Ernakulam Town to Coimbatore. It is true that no eye witness has been examined to prove how the accident occurred. With respect to the same there is only hearsay evidence. At any rate it can by no stretch of imagination be held to be an act of suicide or a self inflicted injury. When the act of the deceased does not come within any of the categories in clauses (a) to (e) of the proviso to Section 124A, the death of the deceased would come within the ambit of accidental falling of a passenger from a train carrying passengers defined as an “untoward incident”. As the death was caused due to an untoward incident, the appellants, who are the parents of the deceased are entitled to compensation as provided under Section 124A of the Railways Act. The finding of the Claims Tribunal that M.F.A.No.275 of 2009 12 the deceased was not a bonafide passenger and thereby the applicants were not entitled to compensation from the respondent cannot be justified and the appellants are entitled to the compensation. 11. Much importance had been given by the Claims Tribunal with regard to the difference of the date of accident made in column 6 of the application as 22/2/2004 and the failure on the part of the applicants to correct the same. 12. It is true that in column No.6 of the main petition, the date of the accident was noted as 22/2/2004 at 8.30 p.m. In column 18 of the same petition, the date of the accident was stated as 20/02/2004 at 8.30 p.m. Other information mentioned in columns 6 and 18 of the petition were that “while the deceased was travelling in Island Express from Kottayam to Bangalore, when the train reached near Madukarai, the deceased accidentally fallen from the train and died.” In spite of that, Pothannur railway station registered a case as Crime No.38/04 on the basis of the First Information Statement given by Sri.Sminu Jose on 20/02/2004 at 10.30 p.m, a friend and classmate of the deceased who was also travelling along with the deceased Sri.Tiby George for the purpose of examination. In the M.F.A.No.275 of 2009 13 F.I.R also, the date of the accident was noted as 20/02/2004. In the reply statement filed on behalf of the respondent, the date of the accident was mentioned as 20/02/2004. Description regarding the date of the accident noted in column No.6 as 22/2/2004 was highlighted by the Tribunal and it did not notice the date mentioned in column No.18 of the petition as 20/2/2004. Issue No.2 was framed by the Tribunal as if the allegation of the applicants in the petition was the deceased travelled in Train No.6525 on 22/2/2004. Definite case of PW1, the mother of the deceased both in the chief affidavit and also in the cross- examination was that the date of the accident was 20/02/2004 and her son succumbed to the injuries sustained in the accident occurred at 8.30 p.m on that day which has not been controverted. Instead, it was elicited and affirmed in the cross- examination that she got the information about the accident on February 20, 2004 at around 9 p.m over telephone informed by his friends. The only suggestion put by the learned counsel for the respondent was that the deceased travelled at the door ways without any precaution and as a result, he fell down due to this careless and negligent act which has been denied by PW1. RW1, who was the T.T.I of Train No.6525 Island Express from M.F.A.No.275 of 2009 14 Ernakulam town to Coimbatore on 20/02/2004 who maintained the diary, copy of the relevant page of which was marked as Ext.R1, stated that the train was stopped on that day after leaving Madukarai station due to I.C. chain pulling since a passenger had fallen down from S2 coach. RW1 has also deposed that he recorded the ticket number of the passenger who had fallen down from the train which was obtained from S.M. Coimbatore and that ticket was for travelling in S9 coach, berth No.71; but that person had not reported in S9 coach from Ernakulam Town to Coimbatore. In the cross-examination, RW1 has stated that regarding the incident occurred on 20/2/2004 in Train No.6525 Island Express, he had given message to S.M.Coimbatore. Thus, it is evident from the evidence adduced by both parties that the accident occurred on 20/02/2004 as stated in column 18 of the petition and the date of the said accident noted in column No.6 of the original petition as 22/2/2004 was only a typographical mistake regarding which, much importance has been given by the Claims Tribunal which cannot be supported. We are, therefore, constrained to interfere in the matter. The judgment and order of the Claims Tribunal is set aside. The appellants claimed a total compensation of Rs.4 M.F.A.No.275 of 2009 15 lakhs. The appellants are entitled to the above amount as compensation to be paid to offset the loss suffered by the appellants due to the untoward incident. The Railway ought to have paid the amount at the time of accident itself and, in any event, at the time when it received the copy of the application. The applicants are not responsible for the delay and they have to be compensated. In the circumstances, we are of the opinion that the Tribunal ought to have awarded interest from the date of application. 13. In the result this appeal is allowed. The appellants are entitled to the compensation of Rs.4 lakhs together with interest at the rate of 6% per annum on the above amount from the date of petition till the date of payment with costs. K.M. JOSEPH, JUDGE M.C. HARI RANI,JUDGE jsr/lgk