of this case show that the appellant attempted to board a https://www.mhc.tn.gov.in/judis 10 moving train from the offside unmindful of his age and fully aware of the positional disadvantage and dangers of boarding a train from a level lower than the footboard of the train. It is common knowledge that the footboard and handrails at the doors of the compartment are designed to suit the convenience of the passengers for boarding from and alighting to the platform. And at the same time, when a person is trying to board the train from the non- platform side, he will be standing on the heap of rubbles kept beneath the track and that too at a lower level. Furthermore, he will have to stretch himself to catch the handrails and struggle to climb up through the footboard hanging beneath the bogie. The probability of danger is increased in arithmetic progression when the train is moving. Visualising all these things in mind, it can only be held that the act of the appellant was the height of carelessness, imprudence and foolhardiness. It is indisputable that the purpose of Section 124-A of the Act is to provide a speedy remedy to an injured passenger or to the dependants of a deceased passenger involved in an untoward incident. Section 124-A of the Act provides for compensation to a passenger or his dependants who suffers injury or death, as the case may be, in an untoward incident https://www.mhc.tn.gov.in/judis 11 even where the untoward incident is not the consequence of any wrongful act, neglect or default on the part of the Railway Administration. To this extent, it can be said to be a no-fault liability. Even though the provisions relating to payment of compensation in the Act can be said to be a piece of beneficial legislation, it cannot be stretched too much to reward a person who acts callously, unwisely or imprudently. There is no provision of law brought to our notice permitting the passengers to entrain from the non-platform side of the railway track. However, the counsel for the respondent did not show any provision of law prohibiting the same. The question whether an act by which a passenger sustains injury while boarding a train through the offside, is a self-inflicted injury or not depends on the facts of each case. Merely because a person suffered injury in the process of getting into the train through the offside, it may not be sufficient to term it as a self-inflicted injury, unless the facts and circumstances show that his act was totally imprudent, irrational, callous and unmindful of the consequences. All the facts and circumstances established in this case would show that the act of the appellant was with full knowledge of the imminent possibility of endangering his life or limb https://www.mhc.tn.gov.in/judis 12 and, therefore, it squarely comes within the term “self-inflicted injury” defined in Section 124-A proviso (b) of the Act.” (emphasis supplied)
23. In Pushpa [Pushpa v. Union of India, 2017 SCC OnLine Bom 8117 : (2017) 3 ACC 799] a hawker died in the course of boarding a train. It was held that he was not entitled to compensation as it was a case of “self-inflicted injury”. The relevant observations are : (SCC OnLine Bom para 14) “14. Such an attempt by a hawker has been viewed by the trial court as something amounting to criminal negligence on his part and also an effort to inflict injuries to himself. The trial court reasoned that if the deceased had to sell his goods by boarding a train, he should have ensured to do so only when it was quite safe for him to get on to the train or otherwise he could have avoided catching the train and waited for another train to come. It also hinted that there was absolutely no compulsion or hurry for the deceased in the present case to make an attempt to somehow or the other board the train while it was gathering speed.” https://www.mhc.tn.gov.in/judis 13
24. In Shyam Narayan [Shyam Narayan v. Union of India, 2017 SCC OnLine Del 8734 : 2018 ACJ 702] , same view was taken which is as follows : (SCC OnLine Del para
7) “7. I cannot agree with the arguments urged on behalf of the appellant applicants in the facts of the present case because there is a difference between an untoward incident and an act of criminal negligence. Whereas negligence will not disentitle grant of compensation under the Railways Act, however, once the negligence becomes a criminal negligence and self-inflicted injury then compensation cannot be granted. This is specifically provided in the first proviso to
Section 124-A of the Railways Act which provides that compensation will not be payable in case the death takes place on account of suicide or attempted suicide, self-inflicted injury, bona fide passenger's own criminal act or an act committed by the deceased in the state of intoxication or insanity.”
25. We are unable to uphold the above view as the concept of “self-inflicted injury” would require intention to inflict such injury and not mere negligence of any particular degree. Doing so would amount to invoking the https://www.mhc.tn.gov.in/judis 14 principle of contributory negligence which cannot be done in the case of liability based on “no fault theory”. We may in this connection refer to the judgment of this Court in United India Insurance Co. Ltd. v. Sunil Kumar [United India Insurance Co. Ltd. v. Sunil Kumar, (2019) 12 SCC 398 : 2017 SCC OnLine SC 1443 : (2017) 13 Scale 652] laying down that plea of negligence of the victim cannot be allowed in claim based on “no fault theory” under
Section 163-A of the Motor Vehicles Act, 1988. Accordingly, we hold that death or injury in the course of boarding or de- boarding a train will be an “untoward incident” entitling a victim to the compensation and will not fall under the proviso to
Section 124-A merely on the plea of negligence of the victim as a contributing factor.
Re : (iii) Burden of proof when body found on railway premises — Definition of passenger
26. Conflict of decisions has been pointed out on the subject. As noticed from the statutory provision, compensation is payable for death or injury of a “passenger”. In Raj Kumari [Raj Kumari v. Union of India, 1992 SCC OnLine MP 96 : 1993 ACJ 846] referring to the scheme of the Railways Act, 1890, it was observed that since travelling without ticket was punishable, the burden was on the Railway Administration to prove that passenger was not a bona fide passenger. The Railway Administration https://www.mhc.tn.gov.in/judis 15 has special knowledge whether ticket was issued or not. The 1989 Act also has similar provisions being Sections 55 and
137. This view has led to an inference that any person dead or injured found on the railway premises has to be presumed to be a bona fide passenger so as to maintain a claim for compensation. However, the Delhi High Court in Gurcharan Singh [Gurcharan Singh v. Union of India, 2014 SCC OnLine Del 101 : 2015 ACJ 171] held that initial onus to prove death or injury to a bona fide passenger is always on the claimant. However, such onus can shift on the Railways if an affidavit of relevant facts is filed by the claimant. A negative onus cannot be placed on the Railways. Onus to prove that the deceased or injured was a bona fide passenger can be discharged even in absence of a ticket if relevant facts are shown that ticket was purchased but it was lost. The Delhi High Court observed as follows : (Gurcharan Singh case [Gurcharan Singh v. Union of India, 2014 SCC OnLine Del 101 : 2015 ACJ 171] , SCC OnLine Del para 4) “4. … (ii) In my opinion, the contention of the learned counsel for the appellant claimants is totally misconceived. The initial onus in my opinion always lies with the appellant claimants to show that there is a death due to untoward incident of a bona fide passenger. Of course, by filing of the affidavit and depending on the facts of a particular case that https://www.mhc.tn.gov.in/judis 16 initial onus can be a light onus which can shift on the Railways, however, it is not the law that even the initial onus of proof which has to be discharged is always on the Railways and not on the claimants. I cannot agree to this proposition of law that the Railways have the onus to prove that a deceased was not a bona fide passenger because no such negative onus is placed upon the Railways either under the Railways Act or the Railway Claims Tribunal Act and the Rules or as per any judgment of the Supreme Court. No doubt, in the facts of the particular case, onus can be easily discharged such as in a case where the deceased may have died at a place where he could not have otherwise been unless he was travelling in the train and in such circumstances depending on the facts of a particular case it may not be necessary to prove the factum of the deceased having a ticket because ticket as per the type of incident of death can easily be lost in an accident. I at this stage take note of a judgment of a learned Single Judge of this Court in Pyar Singh v. Union of India [Pyar Singh v. Union of India, (2007) 8 AD Del 262] which holds that it is the claimant upon whom the initial onus lies to prove his case. I agree to this view and I am bound by this judgment and not by the ratio of the case of Leelamma [Union of https://www.mhc.tn.gov.in/judis 17 India v. Leelamma, 2009 SCC OnLine Ker 903 : (2009) 1 KLT 914] .”
27. In Jetty Naga Lakshmi Parvathi [Jetty Naga Lakshmi Parvathi v. Union of India, 2011 SCC OnLine AP 828 : 2013 ACJ 1061] the same view was taken by a Single Judge of Andhra Pradesh after referring to the provisions of the Evidence Act as follows : (SCC OnLine AP para 24) “24. So, from
Section 101 of the Evidence Act, 1872, it is clear that the applicants, having come to the court asserting some facts, must prove that the death of the deceased had taken place in an untoward incident and that the death occurred while the deceased was travelling in a train carrying passengers as a passenger with valid ticket. Therefore, having asserted that the deceased died in an untoward incident and he was having a valid ticket at the time of his death, the initial burden lies on the applicants to establish the same. The initial burden of the applicants never shifts unless the respondent admits the assertions made by the applicants. Such evidence is lacking in this case. Except the oral assertion of AW 1, no evidence is forthcoming on behalf of the applicants. The court may presume that the evidence which could be, and is not produced, would, if produced, be https://www.mhc.tn.gov.in/judis 18 unfavourable to the person who withholds it. The best evidence rule, which governs the production of evidence in courts, requires that the best evidence of which the case in its nature is susceptible should always be produced.
Section 114(g) of the Evidence Act, 1872 enables the court to draw an adverse presumption against a person who can make available to the court, but obstructs the availability of such an evidence. The Claims Tribunal, upon considering the material on record, rightly dismissed the claim of the applicants and there are no grounds in this appeal to interfere with the order of the Tribunal.”
28. In Kamrunnissa [Kamrunnissa v. Union of India, (2019) 12 SCC 391 : 2017 SCC OnLine SC 304] , from the circumstances appearing in that case it was held that there was no evidence that the deceased had purchased the ticket. In the given fact situation of that case, this Court inferred that it was not a case of “untoward incident” but a case of run over. It was observed:
“7. The aforestated report also reveals, that the body of the deceased had been cut into two pieces, and was lying next to the railway track. The report further indicates, that the intestine of the deceased had come out of the body. The above factual https://www.mhc.tn.gov.in/judis 19 position reveals that the body was cut into two pieces from the stomach. This can be inferred from the facts expressed in the inquest report, that the intestines of the deceased had come out of the body. It is not possible for us to accept that such an accident could have taken place while boarding a train.
8. In addition to the factual position emerging out of a perusal of Paras VII and VIII extracted hereinabove, the report also reveals that besides a pocket diary having been found from the person of the deceased a few telephone numbers were also found, but importantly, the deceased was not in possession of any other article. This further clears the position adopted by the railway authorities, namely, that the deceased Gafoor Sab, was not in possession of a ticket, for boarding the train at the Devangere Railway Station.”
16.The law laid down by the Hon'ble Supreme Court is clear. They have very categorically held that even if an affidavit is filed about the purchase of a ticket, the initial burden of proof is discharged and the onus shifts to the railways to prove that the deceased was not a bonafide passenger.
https://www.mhc.tn.gov.in/judis 20
17.In the instant case, a ticket had been produced. It was for the railways to establish that the deceased was not a bonafide passenger. A mere statement that he was traveling in an express train with the ticket of a passenger train cannot dislodge the fact that he was a passenger of the train and that he can be termed as bonafide passenger, if he pays the penalty required. The judgment of Hon'ble Supreme Court is binding.
18.I would therefore allow the Civil Miscellaneous Appeal with costs and set aside the judgment of the Railway Claims Tribunal in OA (II-U) 132/2016 dated 29.06.2017. A direction is given to respondent to deposit the claim amount of Rs.8,00,000/- (Rupees Eight Lakhs only), in view of the amendment to the Act, enhancing the compensation together with interest at 9% per annum from the date of this award till the date of realization, within a period of six weeks from the date of receipt of a copy of this order. On such deposit the appellants are permitted to withdraw the sum in equal proportions.
08.04.2022 Internet:Yes/No Index:Yes/No smv To https://www.mhc.tn.gov.in/judis 21 The Railway Claims Tribunal, Chennai Bench.
C.V.KARTHIKEYAN,J.
smv https://www.mhc.tn.gov.in/judis Pre-delivery Judgment made in 22 C.M.A No.3296 of 2017 08.04.2022 https://www.mhc.tn.gov.in/judis