This Civil Miscellaneous Appeal has been filed against the order dated 24.09.2009 made in O.A.No.12 of 2007 on the file of the Railway Claims Tribunal, Chennai Bench.
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2. The brief facts of the case are as follows :
On 26.03.2000 at about 5.00 a.m., when the deceased K.Venkatesan was travelling as a passenger train in an EMU, while proceeding from Tambaram to Chennai Beach, he was hit by an electric pole and fell down on the side of the track and died on the spot. The claimants being the legal heirs of the deceased K.Venkatesan, claimant compensation of Rs.4,00,000/- from the Union of India/ Southern Railway.
3. In the reply statement, the respondent denied the death of the deceased by hitting of electric post on 26.03.2000. The particulars furnished for “untoward incident” were not admitted and according to them, the body of the deceased was found at Road No. 2 & 3 between TBMS/L/1005 electric post within the car shed yard situated in Tambaram Railway Station. Further, it is stated that the car shed yard is not open to the public and is purely for the use of railway train repair shop. It is also stated that the deceased was only a trespasser and he ought to have entered into the car shed yard, which is not open to the public. The alleged incident was only a case of trespass and not covered under
Sections 123 (c) and 124-A of the Railways Act, 1989 as claimed by the claimants and the deceased was not possessing a ticket at the time of the incident. Hence, the respondent is not liable to pay the compensation.
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4. The Tribunal, after analyzing the evidence and documents, has given a finding that the deceased was not a bonafide passenger at the time of accident and hence the claimants are not entitled for any compensation or relief. Aggrieved against the said order, the claimants have preferred this appeal.
5. In the grounds of appeal, the appellants have stated that the finding of the Tribunal that the incident does not fall within the definition of “untoward incident” under
Section 123(c)(2) of the Railways Act and that the deceased was not a bona fide passenger are not proper. The burden of proof lies on the Railway to show that the deceased was not a bonafide passenger, whereas, they have not let in any oral or documentary evidence. The grievances of the appellant is that the appellants have no knowledge about the journey ticket purchased by the deceased, as they did not accompany the deceased. In the investigation report – Ex.A6, it has been clearly stated that the deceased had travelled in a train and had accidentally fallen from the train and died due to the grievous injuries. There is no contradictory evidence produced on the side of the respondent as against the said report. The finding of the Tribunal is that the deceased travelled in a rake, which was proceeding to the car shed and the said rake cannot be treated as a passenger train. Further, it is stated that the Tribunal has failed to note that the accidental fall should be from a train carrying passengers and it is not necessary that the train should be carrying passengers at the http://www.judis.nic.in 4 relevant point of time. This reference is made by the appellants only to differentiate the passenger train and goods train. On the whole, the appellants have filed this appeal to set aside the order of the Railway Claims Tribunal.
6. To prove the case of the claimants that the deceased was a bonafide passenger, who met with the accident by falling from the train, one witness was examined on the side of the applicants and no contra evidence was examined on the side of the respondent. Four documents were marked as Exs.A1 to A4. The applicants have filed legal heir certificate – Ex.P7 and there is no dispute regarding the dependency of the claimants.
7. The other three issues raised by the Tribunal are that
a) whether the applicants, proved that the deceased Venkatesan was a bonafide passenger at the time of incident ?
b) whether the applicants proved that the deceased Venkatesan died in an untoward incident on 26.03.2000 while traveling by EMU train between Tambaram and Chennai Beach and died due to hit by electric pole and fell on the side of the track ?
c) whether the applicants are entitled to any compensation?
8. The argument of the appellant before the Tribunal was that they are unaware of the ticket, but the deceased has travelled as bonafide passenger http://www.judis.nic.in 5 from Tambaram to Chennai Beach and he was hit by an electric pole and fell on the side of the track. The contention raised by the applicants before the Tribunal that the respondents have not proved by way of evidence or documents that they have recovered the body of the deceased from the rear side of the car shed. Hence, it has to be treated as “untoward incident”.
9. The main arguments advanced on the side of the respondent, it is argued before the Tribunal was that the death of the deceased was not due to untoward incident (hit by electric post). Since, the body of the deceased was recovered from the car shed yard, where the public cannot allowed and the deceased, who was not a railway employee had trespassed into the shed, which is used for the purpose of railway train repair shop. Hence, it is a case of trespass and hence the deceased was not a bonafide passenger and it is not covered under
Sections 123(c) and
124-A of the Railways Act, 1989.
10. On a perusal of FIR, in which, a message from the CCC/Tambaram. The said message state that a male body aged about 40 years was found on northern end of EMU halting roads 2 and 3 in car shed yard, Tambaram. This message was sent to the police at about 5.00 hours on 26.03.2000. The inquest report – Ex.A6 states the fact that the body was seen at the yard in Road No.2 and 3 where the EMU trains are kept for repairs.
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11. The argument of the Railways was that the body was found in the car shed, where the public are restricted, hence the deceased has to consider as trespasser.
12. On a perusal of the evidence and documents, the applicants/appellants have stated that she has not seen the incident and has not received other belongings from the police or railway authorities and she has not received the ticket. On perusal of the inquest report, it is observed that “gpnujkhdthh; 26/03/2000 md;W fhiy 5/00 Kd;djhf jhk;guk; RS mUfpYs;s kpd;rhu uapy;fs; gGJghh;f;Fk; car shed yard Road No. 2 & 3 f;F ,ilapy; TBMS/L/1005 vd;w kpd; fk;gk; mUfpnyna tlnfhoapy;
Further, in column 15 of the report is clearly stated that the deceased was travelling and sleeping in one of the train and all of a sudden he had fallen from the train and sustained injuries.
”gpnujkhdthh; 26/03/2000 md;W fhiy 5/00 kzpf;F Kd;djhf jhk;guk; uapy; epiyaj;jpYs;s kpd;rhu ,uapy;fs; gGJ ghh;f;Fk; car shed yard http://www.judis.nic.in 7 Road No. 2 & 3 f;F ,ilapy; TBMS/L/1005 vd;w kpd; fk;gk; mUfpy; yardd; tlnfhoapy; shedf;F bry;Yk; Vnjh xU tz;oapy; J}';fpf; bfhz;L brd;wth; jpObud uapypy; ,Ue;J jtwp fPnH tpGe;jtUf;F tyJ Kd; ifapd; tpuy;fs; midj;Jk; uapy; rf;fuj;jpy; rpf;fp miwj;Jk;. clypy; rpuha;g;gf [ ; fha';fs; Vw;gl;Lk;. tpGe;j mjph;r;rpapYk; ,uj;jg; nghf;F mjpfkhdjhYk;
kPJ Vw;gl;l fhaj;jpidg; ghh;j;Jk;. rk;gt ,lj;jpidg; ghh;itapl;Lk; ggrhaj;juhh;fshfpa eh';fs; Vnfhgpj;Jk;. jdpj;jdpahft[k; mgpg;gpuhag;gLfpnwhk;”/
From the above, it can be very well observed that the deceased was travelling in a train and there is also clear fact that the body was seen near the electric post ; it can very well presume that he has fallen from the train and by hitting on the post and the body was found in the car shed. The Panchayators opined that while the deceased was travelling in the train he was asleep and would have fell down from the running train near the car shed and also the electric post in the place where the dead body was lying. Hence, it is for the respondent, to prove before the Tribunal that how can someone who does not travel in the train can fell into that place.
13. As per the evidence of the 1st applicant she was not an eyewitness she has not received the tickets from the police officials, when the other http://www.judis.nic.in 8 things were handed over to her. The other argument is that since he was not possessing a ticket, he is not a bona fide passenger. On the side of the appellants, the case law in 2005 ACJ 702 (G.M.South Central Railway Versus A.Veera Laskhmi Bhaskaram), wherein the Hon'ble Court has confirmed the order of the Tribunal, in which, has concluded the accident occurred due to untoward incident by considering certain issues. The relevant portion in the Judgment is as follows :
“On the basis of the pleadings of the respective parties and the material available on record, the Tribunal framed the following issues for consideration:
(1) Whether the applicants are dependents of the deceased ?
(2) Whether the deceased was a bona fide passenger ?
(3) Whether accidental fall as alleged is not untoward incident?
(4) To what relief?” In the present case, it has to be decided whether the death of the deceased was due to untoward incident by falling down from the train.
14. In view of the stand taken by the respondent that the car shed is not a public pathway, it is for the respondent railways, to prove the fact as to how come the body of the deceased was lying in the car shed. In other words, the possibility of the said situation has to be proved by the railway/respondent. Whereas the inquest report reveals the fact that a person http://www.judis.nic.in 9 who travelled in the train had fallen from the same and hit by the electric post and the body was seen thus in the car shed.
15. From the mode of the accident, and from the message and also the inquest report, it has to be observed that the deceased was thrown away from the train by hitting of the electric pole and the body and hence found in the car shed. With regard to the issue raised by the Tribunal, while dismissing the application is that the claimants have not produced the train ticket by the deceased. In this regard, it is pertinent to refer the Judgment of this Court, in the case of of B.Rajyalakshmi vs The Workmen Air, dated 19.12.2017
8.Countering the submissions made by the learned counsel appearing for the appellants, Dr.S.R.Sundaram, learned Standing Counsel appearing for the respondent submitted that the only issue involved in the present appeal is whether the non-production of the ticket by the claimant is fatal to their case. In support of his contention, the learned counsel relied upon a judgment of the Karnataka High Court reported in 2014 ACJ 2505 [Union of India v. Lakshmi and others] wherein, in paragraph No.6, the Karnataka High Court held as follows:-
"6. The relevant provisions of Railways Act are very clear, in that, if a person suffers injury or death in an untoward incident as contemplated under
section 123(c)(2) of the Railways Act, 1989, he/his family members is/are entitled to seek compensation provided he is a bona fide passenger with valid ticket.
http://www.judis.nic.in 10 That means, either on his body or in his possession such ticket should be found at the time of accident, which is valid for journey in that particular train for that particular day. If that is not found, then the reasonable presumption is that he was travelling without valid ticket. Assuming for a moment, he has travelled with other passengers and if a valid ticket is produced from the possession of another person travelling along with him also would suffice to show that he was a bona fide passenger with valid ticket." Further, the learned Standing Counsel appearing for the respondent submitted that since the claimants have not produced the train ticket of the deceased, the Tribunal has rightly dismissed their claim petition.
9.On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side, it could be seen that the claimants have filed the claim petition without producing the ticket purchased by the victim. In the judgments relied upon by the learned counsel appearing for the appellants it has been held that it is not possible for the legal representatives to produce the ticket or valid authority, who travelled in the train, and the burden of proving that the deceased-victim was not a bona fide passenger is on the Railways and not on the claimants.
10.The Apex Court as well as this Court had repeatedly held that the burden of proving that the victim is not a bona fide passenger lies on the Railways and that non-production of Railway ticket is not fatal to the case of the claimants. Therefore, the Tribunal should not have dismissed the petition on that ground.
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16. In view of the above said discussion, and also the reasoning, when the liability is on the respondent to prove the fact projected and whereas when they failed to prove the same, this Court is of the view that the order of the Tribunal is liable to be set aside when the claimants have proved themselves as the legal heirs of the deceased they are entitled for compensation irrespective of the question, whether the incident is “untoward incident” under
Sections 123(c) and
124-A of the Railways Act, 1989 or not.
17. On a perusal of the evidence and documents placed before the Tribunal, it could very well be observed that no eyewitness was examined before the Tribunal. The FIR was registered based on the message received by the railway authorities. The other documents placed before the Tribunal is that the inquest report, wherein, it has been stated that one person who was travelling in the train had fallen from the same during sleep and hit by the electric pole and he was thrown in the car shed with injuries. Hence, it is observed that this incident is one that has to be construed as “untoward incident”.
18. On the side of the respondent/railway, it is vehemently argued by quoting the case law in Civil Appeal No.4945 of 2018 [Union of India Vs.Rina Devi] http://www.judis.nic.in 12 We have anxiously considered the rival submissions. We consider it necessary to quote the relevant provisions of the 1989 Act.
“S.123 Definitions – In this Chapter, unless the context otherwise requires :
(a) “accident” means an accident of the nature described in
Section 124 ;
(b) XXXX XXXX XXXX XXXX 1(c) “untoward incident” means-- XXXX XXXX XXXX XXXX
(2) the accidental falling of any passenger from a train carrying passengers]. S.124. Extent of liability – when in the course of working a railway, an accident occurs, being either a collision between trains of which one is a train carrying passengers or the derailment of or other accident to a train or any part of a train carrying passengers, 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 has suffered a loss 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 a passenger dying as a result of such accident, and for personal injury and loss, destruction, damage or deterioration of goods owned by the passenger and accompanying him in his compartment or on the train, sustained as a result of such accident.
http://www.judis.nic.in 13 For the purpose of this Section “passenger” includes a railway servant on duty. S.124A 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 suffered 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.
19. In view of the clear evidence of both sides that the deceased was travelling in the train. As per the exceptions under
Section 124A, it is an “untoward incident”. Hence, admittedly, there was no eyewitness for the fall http://www.judis.nic.in 14 of the deceased from the train and only his body was found in the car shed. The case of the railway cannot be accepted that he is a trespasser as no public is allowed into the car shed. Hence, it has to be held that the deceased died after falling down from the train which is clearly accidental.
20.In view of the above discussion, the fact that he met with an accident is an untoward incident is clearly proved. It is for the respondent to prove that he is not a bona fide passenger. But the respondent has not produced any evidence or document to make such a claim. Hence, the order of the tribunal is set aside. This Civil Miscellaneous Petition is allowed and the appellants are entitled for statutory compensation under
Section 123(c)(2) of the Railways Act.
12.04.2019 Index : Yes Internet : Yes Speaking/Non speaking order lpp To
1. The Railway Claims Tribunal, Chennai.
2. The Section Officer, V.R.Section, High Court, Madras.
http://www.judis.nic.in 15 S.RAMATHILAGAM,J.
lpp Pre-delivery Judgment in C.M.A.No.3368 of 2009 12.04.2019 http://www.judis.nic.in