IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 3RD JUNE 2011 / 13TH JYAISHTA 1933 MFA.No. 286 of 2009() -------------------------- OA.(IIU)/ERS/2009/0121 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM BENCH .................... APPELLANT(S): ------------------ 1. T.N.VIJAYAN AGED 52 YEARS, S/O.NARAYANAN,THUMBIKANICKAL HOUSE, II, THOTTAKKODU P.O., PUTHUPALLY, KOTTAYAM DT. 2. SHOBHA VIJAYAN, AGED 48 YEARS, W/O.T.N.VIJAYAN, THUMBIKANICKAL, HOUSE, II, THOTTAKKODU P.O. PUTHUPALLY, KOTTAYAM DT. BY ADV. SRI.MARTIN G.THOTTAN RESPONDENT(S): -------------------- UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI. R1 BY ADV. SRI.N.B.SUNIL NATH,SC, RAILWAYS THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs R. BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------- M.F.A No.286 of 2009-A ------------------------------------------------- Dated this the 3rd day of June, 2011 JUDGMENT Basant,J. The appellants are parents of a young man, aged about 22 years, who allegedly suffered injuries and succumbed to death in an untoward incident that allegedly took place while the victim was travelling in Sabari Express, Train No.7229 from Kottayam to Secunderabad on 20.02.2008. He had allegedly boarded the train at 10.30 a.m. He did not reach the destination and a relative of the appellants passed on that information to the appellants. The appellants thereupon filed a complaint before the Vagathanam police on 21.02.2008, which was registered as Crime No.31 of 2008. Ext.A6 is the F.I.R. Investigations by the police revealed that the deceased had fallen from the train, had suffered injuries and had succumbed to the injuries when he was admitted at Government Hospital, Erode. He had expired on 22.02.2008. At the place where he had fallen from the train - i.e., `Magudanchavadi', near Erode also, a crime was registered by the local police and inquest was conducted. A copy of the Inquest Report produced and marked as Ext.A7. M.F.A No.286 of 2009 -: 2 :- Ext.A6 is the final report submitted by the local police there. The D.R.M.'s report Ext.R1 was prepared and the respondent/Railways was in receipt of the same. All these confirm that while travelling in the train, the deceased had fallen down from the train and had suffered the injuries. He had succumbed to those injuries on 22/2/08. 2. The petitioners, as the dependents of the deceased, staked a claim for compensation due to them under Sec.124A of the Railways Act, 1989. Surprisingly, the claim was resisted by the Railways by filing a counter statement. In the counter statement, inter alia, it was contended that the deceased who was travelling by sitting near the door of the coach was guilty of negligence and recklessness and, in these circumstances, the Railways are exonerated from liability under Sec.124A(b) of the Railways Act i.e., the injury being self-inflicted, the Railways are not liable to pay any amount. Though it was specifically averred in the petition in Col.Nos.6 and 7 that the deceased had boarded the train Sabari Express No.7229 from Kottayam to Secunderabad as a bona fide passenger having valid second class reserved ticket for travel from Kottayam to Secunderabad in S2 compartment, no specific denial was raised. In a sweeping manner in paragraph-3 of the counter statement it was stated M.F.A No.286 of 2009 -: 3 :- that the respondent denies that the deceased had travelled with valid ticket and puts the applicant to strict proof thereof. 3. On these contentions, parties went to trial. The father of the deceased/the first petitioner was examined as P.W.1. He was virtually not cross-examined. Only one question was put to him in cross-examination - that his information about the accident was only hearsay. He accepted the same. Exts.A1 to A8 were marked on the side of the appellants herein. The respondent/Railways did not examine any witness. They proved Ext.R1. 4. The learned Tribunal, shockingly and surprisingly we must say, in the impugned judgment came to the conclusion that the claim has not been proved. Under Issue No.1 it was held that it cannot be ruled that the deceased was a bona fide passenger. Under Issue No.2 it was found that inasmuch as no eye witness to prove the incident had been examined, it cannot be held that the deceased was a victim of any untoward incident. On Issue Nos.3 and 4 as to whether the Railways is absolved from liability under Sec.124A(b) of the Railways Act and whether the Railways are liable to pay compensation to the applicants, no specific finding was entered in the light of the findings under Issue Nos.1 and 2. Accordingly, the Tribunal proceeded to pass M.F.A No.286 of 2009 -: 4 :- the impugned judgment dismissing the claim. 5. Arguments have been advanced before us. Our attention has been drawn to the oral and documentary evidence available. The learned counsel for the appellants contends that the judgment of the Tribunal is perverse, to say the least. The Tribunal had totally ignored the evidence available and the contentions raised by the parties. The Tribunal has erred perversely in insisting that the claimants must have examined independent witnesses to prove the untoward incident. The Tribunal's view that in the absence of the ticket the claimants must have adduced better evidence to prove that the deceased did have a valid ticket is perverse. The Tribunal erred grossly in the light of the contentions raised and Ext.R1 report of the D.R.M. that the claimants should have adduced better evidence (in addition to that of P.W.1) to prove that the deceased had got into the reserved compartment (S2) of Sabari Express with a valid ticket. The Tribunal, the learned counsel contends, has not imbibed the spirit of Sec.124A and has mechanically and technically considered the claim. This certainly is not the manner in which the special Tribunal constituted to do justice under Sec.124A of the Railways Act should have reacted and responded to the materials before it, contends the counsel. M.F.A No.286 of 2009 -: 5 :- 6. The learned counsel for the respondent/Railways submits that the Railways do not want to support the impugned judgment. The Railways had not contended that the deceased was not a bona fide passenger or that he had not succumbed to the injuries which he suffered in an untoward incident. In these circumstances, the learned counsel for the Railways does not dispute the liability of the Railways to pay an amount of Rs.4 lakhs to the claimants. 7. In the light of the informed and sobre stand taken by the learned counsel for the Railways before us, it is not necessary to advert to the facts and law in any greater detail. Suffice it to say that we are shocked by the manner in which the Railways had conducted its case before the Tribunal. We are also totally dissatisfied with the manner in which the Railway Claims Tribunals had responded to the materials before it. We had occasion in judgment dated 30/3/11 in M.F.A. No.119/10 to express our anguish and disappointment with the manner in which the Railways had conducted its case and the Tribunal had dealt with the issues. We do not intend to say anything more in this appeal. 8. It will be advantageous in this context to refer to the Railway Passenger (Manner of Investigation of Untoward M.F.A No.286 of 2009 -: 6 :- Incidents) Rules. Ext.R1 report is submitted by the Officer of the Force who conducted investigation under Rule 7 to the D.R.M. It is of vital significance to note that in that report the Officer of the Force had reported thus: “On 22.02.08 a memo from GH/Erode was received by RPSI regarding one dead body has been kept in the mortuary in GH/ED due to the accidental fall from the train near the Railway track at Km 352/30-32 at DC Railway station. After all legal formalities the RPSI/ED registered a case in his station Cr.No.57/08 U/s 174 of Cr.Pc. and took up investigation. During the enquiry it was learnt that the deceased named Jayesh Vijayan, aged 23 years, S./o. Vijayan, Thumbikanickal House, No.II, Thottakodu P.O. Puthuppalli, Kottayam district, Kerala, was fallen down from the T.No.7229 Exp near the track at km 352/30-32 in between DC RS Block hut and DC Railway stations. He was admitted GH/Erode with the assistance of Railway Staff and public on 21.02.08 at 09.30 hrs. He died on 22.02.08 at 07.10 hours. From the light of enquiry it is revealed that the RPSI/ED collected the opinion from the Panchayath Committee, witness of the case and also medical report M.F.A No.286 of 2009 -: 7 :- of post mortem report and learnt that the death might have occurred due to the accidental fall from the train when caused severe Head injury.” 9. In the light of this finding in the D.R.M.'s report Ext.R1, it does not lie in the mouth of the Railways to contend that there was no untoward incident or that the deceased had not suffered injuries in the incident or that he had not succumbed to the injuries so suffered or that he was not a bona fide passenger. An apology of a contention is raised in Ext.R1 to avoid the liability and that is on the basis of the following: “Since the investigation had cleared that the case is in “ACCIDENTAL DEATH” due to the careless and slackness of the deceased person. Therefore Railway is not responsible for any compensation and no claims need be entertained in this case.” 10. In the light of Ext.R1, unless there was a disagreement with the report in Ext.R1, the Railways could not and should not have taken any different contention on facts before the Tribunal. But it appears that the contentions were strenuously raised and the Tribunal accepted the contentions that there was no M.F.A No.286 of 2009 -: 8 :- evidence that the deceased was a bona fide passenger and that he had succumbed to the injuries suffered in an untoward incident. 11. The only contention raised in Ext.R1 is that negligence of the deceased was responsible for the accident. Needless to say, this cannot be recognized as a ground under Sec.124A(b) of the Railways Act which relates to `self-inflicted injury' suffered. We shall assume the worst. Negligence can never qualify to be described as a `self- inflicted injury' under Sec.124A(b). 12. In short, thus the Railways had no worthwhile contention and could have raised no worthwhile contention. Such an untenable contention raised has obliged the unfortunate appellants to fight two rounds of unnecessary legal battle. 13. Our displeasure must certainly be reflected by an appropriate direction for payment of costs. 14. In the result: (a) This appeal is allowed. (b) The respondent/Railways is directed to pay an amount of Rs.4 lakhs along with interest at the rate of 9% per annum, from the date of the petition before the Railway Claims Tribunal M.F.A No.286 of 2009 -: 9 :- to the date of payment, to the appellants. We further direct that a total amount of Rs.20,000/- be paid as costs to the claimants/appellants. Sd/- R. BASANT (Judge) Sd/- K. SURENDRA MOHAN (Judge) Nan/ //true copy// P.S. to Judge