IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 8119 OF 2013 (RCT) BETWEEN 1. Smt. Gangamma, W/o Late Thopaiah, Hindu, aged 63 years.
2. T. Ramesh, S/o Late Thopaiah, Hindu, aged 39 years.
3. T. Narasimhamurthy, S/o Late Thopaiah, Hindu, aged 37 years.
Appellants 1 to 3 are r/of Dobbspet at Post, Sompura Hobli, Nelamangala Taluk, Bangalore Rural District.
4. Smt. Siddagangamma, W/o K.S. Basavaraju, Hindu, aged 43 years, R/of Bukkapatna, Sira Taluk, Tumkur District.
5. Smt. Radhamma, W/o H.N. Narasimhamurthy, Hindu, aged 41 years, R/of Kurubarahalli Main Road, Bangalore. … Appellants (By Sri. T.C. Sathishkumar, Advocate) AND:
Union of India, Represented by The General Manager, South Western Railways, Hubli, Karnataka State – 580 020. … Respondent (By Sri. R. Ramesh, Advocate) This MFA is filed under Section 23 of the Railways Claims Tribunal Act 1987 against the order dated 30.05.2013 passed in OA II U 27/2010 the file of the Railway Claim Tribunal, Bangalore Bench, Bangalore, dismissing the application filed under Section 16 of the Railway Claims Tribunal Act, 1987.
This MFA coming on for admission, this day, the Court delivered the following:
JUDGMENT Heard learned counsel for the appellants and learned counsel for the respondent. This appeal is listed for admission, with the consent of both the parties, this appeal is heard and disposed of finally.
2. This appeal is preferred by the appellants/applicants against the order dated 30.05.2013 passed by the Railway Claims Tribunal, Bangalore Bench at Bangalore in O.A.II U 27/2010 dismissing the claim application.
3. An application under Section 16 of the Railway Claims Tribunal Act, 1987 read with Section 124-A of Railways Act, 1989 was filed by the applicants seeking compensation of Rs.10,00,000/- from the respondent railways for the death of one Thopaiah who is said to have died on account of untoward incident that occurred on 22.07.2009.
4. Smt. Gangamma, the first applicant is the wife of Thopaiah, T.Ramesh, T.Narasimhamurthy, the second and third applicants are the sons, Smt.Siddagangamma and Smt.Radhamma, fourth and fifth applicants are the daughters of deceased – Thopaiah. According to them, on 22.07.2009, deceased – Thopaiah while boarding the passenger train number 221 at Dabaspet Railway Station at around 10.30 A.M. he fell down and as a result of that he sustained grievous injuries including head injury and he was shifted to Adithya Orthopedic Center, Tumkur for treatment and he succumbed to the injuries on the next day on 23.07.2009. Therefore, the claimants being the LRs of deceased Thopaiah filed application seeking compensation for the death of deceased.
5. Disputing the said claim and denying liability to pay the compensation, the respondent Railways filed written statement contending that the deceased was not a bonafide passenger having valid ticket and deceased while trying to board Train 228 Shimoga-Bangalore City Passenger from the off side i.e., off line fell down and got injured on account of his own negligence and carelessness in trying to board the running train from the off side and therefore, the Railways is not liable to pay any compensation. It was further contended that Train No.221 arrived later and the injured Topaiah was shifted to Adithya Orthopedic Centre at Tumkur for treatment through Train No.221. The alleged incident was with reference to Train No.228, but not Train No.221 as alleged by the applicants.
6. In support of the claim, first applicant Gangamma, wife of deceased Thopaiah was examined as AW.1 and Exs.A-1 to A-13 were marked. On behalf of the respondent, one Mr.T.G.Siddappaji, Halt Agent, Dabaspet was examined as RW.1 and T.Raju, Loco Pilot, Bangalore City was examined as RW.2 and Exs.R.1 to R.7 were marked.
7. Based upon the pleadings averred in the claim petition as well as written statement and after hearing the learned counsel for the parties and on consideration of all the materials available on record, the Tribunal dismissed the claim petition filed by the applicants and held that they are not entitled for any compensation. It is this order which is under challenged in this appeal.
8. Learned counsel for the appellants/applicants firstly contends that the Tribunal has dismissed the claim application without considering the documents produced by the appellants in support of their case. It is contended that without going through the evidence produced by the appellants and despite examining the bonafide co-passenger on behalf of the appellants, the Tribunal only relying on the evidence of the interested witness of the Railway Authority has brushed aside the legitimate claim by dismissing the claim petition of the appellants.
9. Further it is contended that the deceased Thopaiah was a bonafide passenger of Train No.221 on 22.07.2009 and the incident occurred at Dabaspet Railway Station at 10.30 am. The deceased was traveling in train under a ticket. But the Tribunal has given an adverse inference in the judgment as if no such plea was made in the application which is against the records of the Tribunal.
10. Further, the Tribunal has failed to appreciate the evidence of AW.1, the first applicant who has stated in her evidence about purchase of ticket by the deceased Thopaiah. The deceased boarded the Train No.221 at Dabaspet Railway Station and due to jolt and jerk and sudden movement of train, he fell down and sustained severe injuries. He was shifted to Adithya Orthopedic Centre Tumkur on 22.07.2009 and on the next day on 23.07.2009 he succumbed to injuries while undergoing treatment.
11. Further, it is the contention of the appellants that the Tribunal failed to appreciate the evidence of the co-passenger AW.2 who was proceeding to Tumkur under monthly pass in the same train on the issue of traveling of deceased – Thopaiah in Train No.221 from Dabaspet to Tumkur under ticket and the same has been witnessed by AW2 and whose pass number was specifically mentioned in the claim application, but the Tribunal without considering the said evidence has dismissed the claim petition filed by the applicants.
12. Further, it is contended that as the evidence on record shows that the deceased sustained injuries to which he succumbed later on account of fall from the train and therefore applicants are entitled for compensation. But the Tribunal committed an error in holding that as the deceased was not a bonafide passenger with any valid ticket, the applicants being the LRs of deceased Thopaiah are not entitled for any compensation. The same is opposed to law, facts and circumstances of the case.
13. Learned counsel for the appellants, in support of his contentions, placed reliance on a judgment passed by the High Court of Delhi in the case of Rani Devi v. Union of India reported in 2018 ACJ 2681 wherein it is held that:
Railways Act, 1989, sections 123 (c) (2) and 124-A – Untoward incident – Negligence of victim – Passenger fell down while boarding train at platform and sustained fatal injuries – Railway Claims Tribunal dismissed the claim application on the grounds that deceased was not a bona fide passenger as ticket was not recovered from him but was later produced by claimant and the train in question departed before the occurrence of the incident – Section 124-A is based on the principle of no fault liability and compensation cannot be denied on the ground that deceased was negligent and it is wholly irrelevant as to who was at fault – Body of the deceased was found on the tracks near platform which proves the accident resulting in the death of deceased – Whether the deceased died in an untoward incident and Railways is liable”
14. Per contra, learned counsel for respondent - Railways disputes the claim and denies the liability to pay the compensation contending that deceased – Thopaiah was not a bonafide passenger having valid ticket and the deceased while trying to board Train No.228 Shimoga-Bangalore City Passenger from the offside, fell down and got injured on account of his own negligence and carelessness in trying to board the running train from the offside and therefore, the respondent is not liable to pay the compensation. He contends that the alleged incident was with reference to Train No.228 and not Train No.221 as alleged by the appellants. In this regard, testimony of RW.1 would corroborate the version of the respondent that deceased who was staying at the station crossed the track and tried to board the moving train No.228 from the off side and fell down and sustained injuries and in the meanwhile, Train No.221 arrived and the injured was shifted by the train to Tumkur for treatment.
15. Further, he contends that the deceased was not a bonafide passenger of Train No.221 and apart from that there is no plea or evidence on the applicants’ side to the effect that the deceased purchased any ticket and that no ticket was recovered from him while he was in the hospital or from his person after his death. It is contended that there is no untoward incident as alleged by the claimants and there is no justifiable reason for them in seeking compensation, as the deceased was not a bonafide passenger with any ticket.
16. In support of his contention, learned counsel for the respondent Railways placed reliance on a judgment of the Supreme Court reported in AIR 2017 SC 1436 between Kamrunnissa vs. Union of India wherein the petition filed by the claimant was dismissed holding that no train ticket was recovered from the body of deceased and the deceased not being a valid passenger, claimant was not entitled for compensation. In this premise it is emphatically contended by the respondent that the Railway Claims Tribunal has rightly dismissed the claim petition filed by the LRs of deceased Thopaiah. He contends that the appeal being devoid of merits, may be dismissed accordingly.
17. In this background, it is relevant to refer to the evidence of AW.1 and AW.2 adduced on behalf of the appellants. AW.1 – Gangamma is none other than the wife of deceased – Thopaiah. She has stated in her evidence by way of affidavit that on 22.07.2009 at about 10.30 AM while her husband climbed Train No.221 at Dobbaspet Railway Station, due to jolt and jerk on sudden movement of train, he fell down and sustained severe injuries. During that process her husband Thoppaiah sustained head injury with cerebral edema, fractures of right clavicle, right humerus, right side ribs 3 to 6, lacerations over right temporal area and on other parts of the body. Further, her husband was shifted to Adithya Orthopaedic Centre, Tumkur for treatment but he last his breath on 23.7.2009 while under treatment. The post mortem over the dead body of Thopaiah was conducted by the Doctor at Government Hospital, Tumkur. Thopaiah was contributing his entire earning to family maintenance and his death has caused great loss to the family. She has specifically stated in her evidence that when the deceased was in hospital he was alive and he was conscious and able to speak and he has spoken with her. He has informed her that while boarding the train, suddenly the train has moved and he fell down. She has denied the suggestion that her husband died due to his own negligence.
18. AW.2 – Manjunath is the witness for the claimants and he has stated that he is a student studying at Tumkur and used to travel regularly by passenger trains from his village to Tumkur from Dabaspet Railway Station to Tumkur Railway station and vice versa. He is holding traveling pass/season ticket. He states that on 22.7.2009 when he boarded the Train No.221 at Dabaspet Railway Station to attend college at Tumkur, one old person also entered the train bogie and the said train moved suddenly and due to jolt and jerk of the train, the said person fell down and sustained injuries on his head with cerebral edema and fractures of right sided bones along with other lacerated wounds. On enquiry he came to know that the said person last his breath on the next day at Adithya hospital, Tumkur and he also ascertained that the deceased was his neighbouring villager and was a skilled tailor.
19. RW.1 – Siddappaji, working as Halt Agent, Dabaspet Halt Station has stated in his evidence that the deceased has not at all purchased the ticket for traveling on 22.07.2009 and at about 10.55 hrs the train No.228 – Shimoga – Bangalore city passenger arrived and stopped opposite to station line towards Bangalore side, and after arrival of the said train the deceased crossed the station side line and boarded the moving train on off side and fell down and got injured.
After passing of train No.228, train No.221 arrived on station side line towards Tumkur and stopped and the injured was loaded in train No.221 and shifted to Tumkur for treatment.
20. It is relevant to state here that there is no dispute with regard to death of deceased Thopaiah who met with an accident. There is no dispute that inquest proceedings was held over the dead body of deceased Thopaiah as per Exhibit A3. Further in the inquest report it is mentioned that we the panchas upon seeing the injuries sustained on the body of the deceased and by the statements of his son, we opine that the deceased in order to come to Tumkur on his personal work, tried to catch the push-pull train at Dabaspet Railway Station, but fell down and sustained injuries, brought to District Hospital, Tumkur for treatment and was admitted to Aditya Orthopedic Centre, Tumkur for further treatment. But on 23.07.2009 at 7.30 a.m. without responding to the treatment, the deceased passed away. Further there is no dispute that deceased sustained injuries as per the Post mortem report – Ex.A2 and Ex.R7. But this vital document requires to be appreciated in a proper perspective manner. It is stated that deceased suffered grievous injuries like head injury with cerebral edema, fracture of right clavicle and fracture of right humerus, right of right side ribs 3 to 6, laceration over right temporal area along with other injuries.
21. AW.1 has admitted in the cross-examination that she saw her husband when he was alive and he was conscious and was able to speak and he told that while boarding the train, suddenly the train moved and he fell down. This part of the evidence has not been considered by the Tribunal while dismissing the application of the claimants.
22. Further AW.2 – Manjunath, has stated that he was regularly traveling from Dabaspet to Tumkur to attend the college holding a monthly season ticket and on 22.07.2009 when he boarded train No.221, an old person also entered the bogie and when the train passed some distance suddenly the driver applied the brakes and stopped the train and at that point of time, the deceased fell down from the train. Further, he has stated that he saw the deceased purchasing the ticket. This part of the evidence has also not been considered by the Tribunal in a proper perspective manner while dismissing the application of the applicants. The Tribunal only relying on the evidence of the railway officials who are RW.2 – Raju, loco pilot of train No.221 and RW.1 – Siddappaji, Halt Agent in Dabespet has proceeded to hold that the deceased was not a bonafide passenger having valid ticket, hence, claimants are not entitled for any compensation.
23. In the cross-examination of RW.2 he has stated that on humanitarian grounds, he has taken the injured to Tumkur by Train No.221 as he was found with injuries. The Tribunal relying on the evidence of RW.2 has not given any value or weightage to the evidence of AW.2 who is an eye witness to the incident that the deceased was boarding Train no.221. This has caused miscarriage of justice to the case of claimants.
24. Further the Tribunal has failed to consider the contentions of the applicants that as the evidence on record shows that the deceased sustained injuries to which he succumbed later on account of fall from the train the applicants are entitled for compensation. The compensation is payable due to the death of deceased Thoppaiah on account of an untoward incident.
25. In this context it is relevant to refer to Section 123(c)(2) and Section 124A of the Railways Act, 1989 and the same reads as under:
123.(c) “untoward incident” means— (2) the accidental falling of any passenger from a train carrying passengers.
124A. Compensation on account of untoward incidents.
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 dependant 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;
(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 purposes of this section, "passenger" includes-
(i) a railway servant on duty; and (ii) a person who has purchased a valid ticket for traveling, by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.] 26. In the case of Suman Sharma vs. Union of India reported in 2018 ACJ 2849 it is held that merely because there has been no recovery, as such, of any ticket from the body of the deceased would not be a ground to deny the benefit of the no fault liability which is to be paid on account of untoward incident under Section 124. Merely because no ticket was found from his body would not, mean that the dependants are not entitled for the compensation. Therefore, keeping in view the fact that the provisions of Section 124-A are in a form of no fault liability, the Railways would be liable to pay compensation on account of the untoward incident.
27. Admittedly, in this case, the Railways had not been able to prove that the case fell within the exceptions which fall under Section 124-A whereby no compensation is to be paid by the railway administration if the passenger dies or suffers injury due to suicide or attempted suicide by him; self-inflicted injury; his own criminal act; any act committed by him in a state of intoxication or insanity. The onus, thus, should have been shifted upon the Railways to prove that he was a trespasser as such and was traveling without a ticket and not a bona fide passenger and, therefore, the Tribunal has committed an error in dismissing the claim petition of the claimants and the impugned order is unsustainable in law.
28. It is well settled that if the words used in a beneficial or welfare statute are capable of two constructions, the one which is more in consonance with the object of the Act and for the benefit of the person for whom the Act was made should be preferred. Beneficial or welfare statutes should be given a liberal interpretation.
29. In Rani Devi vs. Union of India reported in 2018 ACJ 2681 it is held that Section 124-A is based on the principle of no fault liability and compensation cannot be denied on the ground that deceased was negligent and it is wholly irrelevant as to who was at fault and so also body of the deceased was found on the tracks near platform which proves the accident resulting in the death of deceased. The Railways is liable when the deceased died in an untoward incident.
30. Coming back to the case on hand, it is not the case of the Railways that the death of deceased – Thopaiah was a case of suicide or a result of self-
inflicted injury. It is also not the 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 accidental.
31. The judgments referred to supra are squarely applicable to the case on hand as wherein deceased Thopaiah said to have boarded Train No.221 on 22.07.2009 at Dabaspet Railway Station at 10.30 am and fell down and sustained head injuries as a result of that he was shifted to Government Hospital, Tumkur and thereafter to Adithya Orthopaedic Centre, Tumkur where he succumbed to injuries. Inquest proceedings were conducted over the dead body and post mortem was report was secured. Therefore, keeping in view the aforesaid reasons, in this appeal the impugned order passed by the Tribunal needs intervention as the same is erroneous in law.
32. The Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 has been amended by Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 2016 w.e.f. 1.1.2017. By the said amendment, the compensation for death has been enhanced from Rs.4,00,000 to Rs.8,00,000/-. In the case of Rani Devi vs. Union of India, the appellant has been awarded compensation of Rs.8,00,000/-. This judgment squarely applies to the case on hand. Hence, for the reasons stated above, the following:
ORDER Appeal is allowed in part. The order dated 30.05.2013 passed in OA II U 27/2010 by the Railway Claims Tribunal, Bangalore Bench, Bangalore, dismissing the application filed under Section 16 of the Railway Claims Tribunal Act, 1987 is hereby set-aside. The appellants/claimants are entitled for compensation of Rs.8,00,000/- (Rupees eight lakhs) with interest @ 12% p.a. from the date of filing the claim petition before the Railway Claims Tribunal.
The compensation amount shall be apportioned between the appellants/applicants as under:
First applicant Smt.Gangamma being the wife of deceased is entitled for 60% of the compensation with accrued interest. Second and third applicants being the sons of deceased are entitled for compensation of 20% each, with accrued interest. Applicants 4 and 5 being the married daughters are not entitled for any compensation.
The respondent Railways shall deposit the amount within a period of four weeks from the date of receipt of copy of this judgment.
SD/- JUDGE DKB