IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 MFA.No. 165 of 2009() ----------------------------- OA.3/2003 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): ---------------------- UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI. BY ADV. SRI.T.P.M.IBRAHIM KHAN,SR.SC, RAILWAYS RESPONDENT(S): ------------------------- K.RAJESWARI AMMA, RAJEEVAM, KURAMPALA, PANDALAM P.O., PATHANAMTHITTA DISTRICT, KERALASTATE, PIN CODE NO: 689 401. ADV. SRI.A.K.MADHAVAN UNNI FOR R1 THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 10/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PKK A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------ M.F.A No. 165 OF 2009 ---------------------------- DATED THIS THE 10TH DAY OF AUGUST,2010 J U D G M E N T Barkath Ali, J. This appeal under Section 23 of the Indian Railway Claims Tribunal Act, 1987, filed by Union of India represented by the General Manager, Southern Railway, Chennai is directed against the judgment and award of the Railway Claims Tribunal, Ernakulam Bench dated October 31, 2008 in O.A No. 3/2003 awarding a compensation of Rs. 4 lakhs to the applicant for the loss sustained by her on account of death of her husband Shri. C.K. Gopinatha Pillai in an untoward incident that occurred on August 18,2000. 2. The case of the respondent/applicant as testified by her as PW1 before the Tribunal and as stated in the application in brief is this: On August 18,2000 at about 6 p.m. deceased was travelling by train No.344, Push Pull train from Chengannur to Ernakulam. When he reached Kathirkadavu area near Ernakulam Jn., he accidently M.F.A No. 165 OF 2009 2 fell out of the train. He sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment at Medical Trust Hospital, Ernakulam at 9.25 p.m. on the same day. 3. The appellant/respondent contended before the Tribunal that actually deceased was hit by a train while he was crossing the track, which does not attract Section 123(c)(2) of the Railways Act, and therefore the Railway is not liable to pay compensation to the claimant U/s. 124A of the Railways Act. 4. PW1 was examined. Exts.A1 to A6 were marked on the side of respondent/applicant before the Tribunal. RWs 1 and 2 were examined and Exts. R1 and R2 were marked on the side of the applicant. On an appreciation of evidence the Tribunal found that the deceased was a bonafide passenger in the train in question and that he accidentally fell down from the train and sustained fatal injuries and finally succumbed to the injuries sustained and that therefore the claimant is entitled to compensation as provided under Section 123(c)(2) of M.F.A No. 165 OF 2009 3 the Railways Act. The respondent has now come up in appeal challenging the said finding of the Tribunal. 5. Heard the counsel for the appellant and counsel for the respondent. 6. The following point arises for consideration: (i) Whether the finding of the Tribunal that the deceased was a bonafide passenger of the train No. 344, Push Pull train from Chengannur to Ernakulam on August 18,2000 and that he sustained fatal injuries in an untoward incident as defined under Section 123 (c)(2) of the Railways Act can be sustained ? (ii) Whether the Railway is entitled to be exempted from the liability as provided U/S. 124A of the Railways Act ? 7. Ext. A1, the original computer journey II Class Season Ticket for journey between Ernakulam Jn. and Chengannur by mail/Express train which is valid from 5.8.2000 to 4.9.2000 and Ext.A2 Identity Card No. D 592699 clearly show that the applicant was a bonafide passenger in the said train during M.F.A No. 165 OF 2009 4 the relevant date. The case of the applicant is that the deceased fell down from the train and sustained the fatal injuries. The respondent would content that he was knocked down by a train while crossing the track. Ext.A4 and A5, copy of F.I.R and Inquest report would show that as per the investigation report of the Police, the deceased was knocked down by the train while crossing the railway track. But there was no eye witness to the incident. The Police has come to the above conclusion only on the basis of hearsay evidence. Therefore no reliance can be placed on Exts.A4 and A5. On the other hand Ext.A1, the train ticket shows that the deceased was a bonafide passenger of the train in question. Therefore in the absence of any eye witness to the incident and as there was no evidence to show that the deceased was knocked down by the train. the Tribunal is perfectly justified in coming to the conclusion that the deceased was a bonafide passenger in the train and he fell down from the train and that as a result of which he sustained fatal injuries as alleged by the M.F.A No. 165 OF 2009 5 applicant which will come under an 'untoward' incident as defined under Section 123(c)(2) of the Railways Act. There is no evidence to show that the incident comes under any of the exemptions provided under the proviso to Section 124A of the Act. That being so the applicant is entitled to compensation from the Railways. The finding of the Tribunal on this point is confirmed. 8. The Tribunal awarded statutory compensation of Rs.4 lakhs with interest at 9% per annum from the date of registration of the case ie. on 16.1.2003 till realization. We find no reason to interfere with the said finding of the Tribunal. That being so, the appeal has to be dismissed. In the result the appeal is dismissed. A.K.BASHEER JUDGE P.Q.BARKATH ALI JUDGE pkk M.F.A No. 165 OF 2009 6 pkk