IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 MFA.No. 144 of 2005 --------------------------------- OA.60/1998 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANTS: 1. KANNIYADIL KARTHIYANI AMMA, W/O. LATE T.P.RAGHAVAN, RESIDING AT PUTHUR P.O.KOZHUMMAL, (VIA) KARIVELLUR, KANNUR DISTRICT. 2. KANNIYADIL RADHAKRISHNAN, S/O. LATE T.P.RAGHAVAN, ASARIMOOLA, P.O.THIMIRI, KASARAGOD DISTRICT. 3. KANNIYADIL RADHAMANI, D/O. LATE T.P.RAGHAVAN, RESIDING AT PUTHUR P.O.KOZHUMMAL, (VIA) KARIVELLUR, KANNUR DISTRICT. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENT: UNION OF INDIA, REP. BY THE GENERAL MANAGER OF RAILWAY, SOUTHERN RAILWAY, MADRAS. ADV. SRI.M.C.CHERIAN(Sr.) THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.F.A.No.144 of 2005 --------------------------------- JUDGMENT Koshy, J. Raghavan, who was an employee of the Sub Court, on his way to Kannur on 18.5.1998 in Jammu Tawi Express, fell down at Payyannur Station and sustained fatal injuries. His legal representatives filed an application for compensation. According to the claimants, they are entitled to compensation as it was an untoward incident as per Section 124-A of the Railways Act, 1989 read with Rule 19 of the Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 1997. In the application, it was stated as follows: “On 18.5.1998 the deceased, after his office hours, was on his way to Kannur by Jammu-Thavi Express No.6687. At about 7 p.m. it reached Payyannur Station. At Payyannur, another train was stopped on the main line waiting Jammu-Thavi Express to be passed. MFA 144/05 2 Jammu-Thavi was arranged to be shunted on to the 2nd line. The train was jam packed. There were several beggers in the coach where the deceased was travelling. The corridor and all spaces in the compartment was thickly packed. As the deceased did not get seat, he remained standing. At the time of shunting, there caused severe jerk in the compartment and the deceased accidentally slipped down near the 2nd platform at Payyannur Railway Station and sustained injuries. He was left unattended by the authorities for some time. Later on, he was taken to BKM Hospital Payyannur where from he breathed his last and subsequently, his body was removed to Govt. Hospital, Payyannur and carried out postmortem.” In the counter statement, it was contended that it is a self inflicted injury and therefore, it is not an untoward incident as defined under Section 124-A of the Railways Act. 2. In this connection, we quote Section 124-A of the Railways Act, which is as follows: MFA 144/05 3 “Compensation on account of untoward incident:- When in the course of working 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 dependent of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding 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 this section by the railway administration if the passenger dies or suffers 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; MFA 144/05 4 (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 ticker for travelling, by a train carrying passengers, on any date or a valid platform ticker and becomes a victim of an untoward incident.” Under Section 123(c) of the Railways Act untoward incident is defined as follows: “(1)(i) the commission of a terrorist act within the meaning of Sub-section (1) of Section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987; or (ii) the making of a violent attack of the commission of robbery or dacoity; or MFA 144/05 5 (iii) the indulging in rioting, shoot-out or arson, by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform on in any other place within the preciners of a railway station; or (2) the accidental falling of any passenger from a train carrying passengers.” The Tribunal came to the conclusion that it is not an untoward incident. Tribunal, after finding that he was a bona fide passenger, on the basis of the evidence of RW1 Railway Station Master, held that the incident occurred only because he tried to get down at Payyannur. The Tribunal held as follows: “From the testimony of RW1, it has come in evidence that Jammu Tawi Express was running slowly on the loop line at Payyannur on 18.5.1998 for giving passage to another train No.627, in such circumstances danger will be invited by a person if he/she attempts to get down from it even though the motive to do such act is to reach home earlier. MFA 144/05 6 Therefore, the incident in which deceased Raghavan sustained injuries and succumbed does not attract 'Untoward Incident' as defined under Section 123(c)(2) of the Railways Act, 1989, on the other hand, it is on account of his own negligence in inviting danger by venturing to alight from the moving train at a station where it had no booked halt. So, the contention of the respondent that the act of deceased Raghavan was 'self inflicted injury' and they are exempted from the liability to compensate the applicants as provided under Section 124A(b) of the Railways Act, 1989 is upheld.” 3. Learned counsel for the appellant mainly relied on the evidence of PW2, who was a co- passenger. He deposed in terms of the application that due to shunting jerk the deceased accidentally fell down at Payyannur. He also relied on the FIR. After the fall, the victim was taken to the nearby hospital, where he breathed his last. In the final report, it was specifically mentioned that he fell down accidentally. Police Investigation shows that MFA 144/05 7 it was an accidental fall and there is no case that the accident occurred when he tried to get down from the train. Exhibit A4 is the final report submitted by the police. 4. RW1, the Railway Station Master deposed that at the time of the accident, he was in Platform No.2 of Payyannur Station. The distance between the spot of the incident and where he was standing was 500 metres and not 500 feet. But, even if it is within 500 feet, it will be difficult for him to see the incident in a crowded station, who has got other duties also. He has also deposed that he sent a message immediately after the accident. He further deposed that he had given signal to the engine driver of the running train. But, even assuming that he had seen the accident, in the message he had sent to the Deputy Controller, actual facts would have been mentioned. Even though in the list of documents it was mentioned, it was not produced. In the appeal, a petition was MFA 144/05 8 filed and this Court, on the basis of the arguments, directed the railways to produce that message. It is submitted that the said message is not traceable. According to the claimant, in the message, it was specifically stated that it was an accidental fall. Railways are in possession of the documents and that was not produced. It has been repeatedly held by the courts that untoward incident is very widely defined in view of Section 123(c) of the Railways Act. It is for the Railways to prove that it was not an untoward incident. Once it is admitted that a bona fide passenger sustained injuries by falling from train, it is not a self inflicted injury. Railways has no case that it was a suicide. It is an untoward incident. He was not doing any criminal Act. FIR clearly shows that it was an accidental fall and it was not a self inflicted injury. So, on the basis of both oral and documentary evidence adduced in this case, we are of the opinion that it was an untoward MFA 144/05 9 incident and claimants are entitled to compensation. Therefore, we allow this appeal and direct the Railways to pay an amount of Rupees Four lakhs as provided under Schedule I of the Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 1997 with 7.5% interest per annum from the date of application till its payment. One half of the above amount should be paid to the first appellant (wife) and one fourth share each to second and third appellants (children). (J.B.Koshy, Judge) 4th November, 2008 (K.P.Balachandran, Judge) tkv