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Union of India, Owning South Central Railway, Rep. by its General Manager, Secunderabad v/s S. Janaki & Another

    C.M.A. No. 613 of 2016 & C.M.P. No. 5071 of 2016

    Decided On, 07 June 2019

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE T. RAJA

    For the Appellant: U. Venkatesan, Advocate. For the Respondents: R. Sekaran, Advocate.



Judgment Text

(Prayer: This Civil Miscellaneous Appeal is filed under Section 23 of Railway Claims Tribunal Act, 1987 against the final orders passed in OA (II-U) No.344 of 2014 by the Railway Claims Tribunal, Chennai Bench dated 23.11.2015.)

1. This Civil Miscellaneous Appeal has been filed by the Union of India, represented by its General Manager, Southern Central Railway, Secunderabad challenging the interim order passed in O.A.No.344 of 2014 dated 23.11.2015, by the Railway Claims Tribunal, Chennai Bench on the ground that the finding of the Tribunal in awarding compensation for a sum of Rs.4,00,000/- is purely on presumptions and surmises without there being any clinching criteria governing for evidence when a claim was made by the claimants of the deceased, that the deceased while travelling from Guntur to Chennai on 18.05.2014 at about 10 p.m after parking his cycle at cycle stand, Guntur Railway station vide token No.A1856, fell down from train due to jolt and jerks of the train accidentally in between Tetu and Kavali Railway Stations. There was no eye witness to the incident. Secondly, the claimants have not submitted any journey ticket to prove that the deceased was a bona fide passenger. The Inquest report also confirmed that there was no ticket found with the deceased. The same Inquest report only reveals that a Nokia Cell Phone and a cycle stand ticket dated 18.05.2014 were found in the shirt pocket of the deceased. Therefore, the deceased was not a bona fide passenger. This important aspect was completely over looked.

2. The learned counsel a

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ppearing for the appellant submitted that in the event of fall from over crowded compartment, the co-passengers might have seen and pulled the chain to stop the train or reported to Driver, Guard or Station Master. Therefore, mere finding the deceased near the Railway tracks does not mean that he had travelled in train and fallen down. The death could have occurred due to some other reasons other than fall from train. This vital aspect has been over looked by the Tribunal. Although, the Divisional Railway Manager, Vijayawada Division conducted a detailed enquiry in the case and the investigation report revealed that no journey ticket was available with the deceased and when there were no jolt and jerks as alleged by the claimants, there is no fault or lapse on the part of the Railway administration to pay compensation. The alleged incident does not attract the provision of accidental fall from train. Therefore, the reasons assigned by the learned Tribunal in holding that the claimants are entitled to get compensation from the appellant are liable to be set aside inasmuch as the deceased was not a bona fide passenger and besides the Inquest report and the final report clearly established that no ticket was found with the deceased. Hence, he sought for interference with the impugned order passed by the Tribunal.

3. In reply, the learned counsel for the respondents/claimants would submit that the deceased in order to see his wife and daughter, who had gone to Chennai for summer vacation, left Guntur town on 18.05.2014, after parking his cycle at Guntur Railway station cycle stand vide token No.A1856. The cousin of the deceased, who had bought the general superfast ticket for the deceased from Guntur to Chennai had seen the deceased at Guntur Railway Station at about at 10 p.m, when he was boarding the Hyderabad - Chennai train at Guntur Railway Station. Later on, the applicants came to know from Kavali Railway police that the deceased while travelling, fell down from the running train in between Tetu and Kavali Railway Stations prior to 8.15 hours on 19.05.2014 at Km No.234/13-11. The deceased body was noticed by Keyman K.Venu and based on his message, SM/KVL issued memo to SS/TTU at 8.50 hours. Based thereon, FIR No.29/2014 dated 19.05.2014 was registered by GRP/Guntakal Police Station, Kavali and thereafter, the Inquest report was also prepared by the Railway police. The Inquest report clearly shows that as per the contents of FIR, statements of witnesses, observation of scene of offence etc. the panchayatdars unanimously deposed that the deceased and his cousin Ravi Kiran came to Guntur Railway station on 18.05.2014 at about 10.00 p.m and parked their cycle in the cycle stand and the Ravi Kiran took general super fast ticket from Guntur to Chennai and the same was given to the deceased. The Inquest report further proceeds to say that the deceased took the ticket and boarded at Hyderabad to Chennai Express in order to go to Chennai. During the journey, the deceased was accidentally fallen down from running train through door way due to shakes and jerks of the train, in between Tettu to Kavali Railway stations at KM post No.213/13-11 and sustained fatal injuries and died on the spot. Therefore, the Railway police conducted a detailed and thorough investigation and based on the statement of witnesses, alongwith observations of scene of offence, the Inquest report was prepared holding that the deceased after taking ticket and boarded at Hyderabad to Chennai Express in order to go to Chennai. During the journey, the deceased was accidentally fell down from the running train through door way due to shakes and jerks of the train in between Tettu to Kavali and as a result, he died. The question again disputing bona fide of the deceased in purchasing the ticket and travelling in the train on the date of accident is untenable and misconceived when there was already an enquiry conducted by the Railway police and an Inquest report submitted has clearly shows that the deceased was a bona fide passenger and his body was also found on the Railway track, it is pleaded.

4. Heard both sides. At the outset, it may be mentioned that the learned Tribunal has rightly and clearly come to the conclusion that the deceased was a bona fide passenger and the incident occurred while falling from running train carrying passengers, which falls within the ambit of untoward incident, within the meaning of Section 123(c)(2) of the Railways Act, 1989 and hence the appellants cannot come to this Court again questioning the correctness of the finding that the claimants of the deceased are entitled to receive compensation as prescribed in Part 1 of Schedule II of the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990. I also find considerable merits in the reply given by the learned counsel appearing for the claimants for the following reasons. Firstly, the body of the deceased by name S.Shanmukha Achari was found dead and lying at KM No.234/11-13 in between Tettu and Kavali Railway track suffered (i) grievous injury on head, (ii) fracture on both shoulders, and (iii) grievous injury on right leg below knee. The deceased body was taken to Area Hospital, Kavali by RPS HC/217 through RPC/618, namely Mr. P.Naveen on 19.05.2014 at 13.00 hours, to know the actual cause of the death. The Railway police also got into action. Finally, an Inquest report was prepared. Before preparing the Inquest report, the contents of FIR were analysed and the statements of witnesses, observations of scene of offence etc the panchayatdars unanimously told that the deceased and his cousin Ravi Kiran came to Guntur Railway station on 18.05.2014 night at about 10.00 p.m and parked their cycle in the cycle stand. The said Ravi Kiran took general super fast ticket from Guntur to Chennai and the same was given to the deceased. Thereafter, the deceased took the ticket and boarded in Hyderabad to Chennai express in order to go to Chennai. While in the journey, the deceased had accidentally fallen down from running train through door way due to shakes and jerks of the train, in between Tettu-Kavali Railway Stations at KM No.234/13-11, and received fatal injuries and died on the spot. Therefore, the Inquest report prepared by the Railway police has completely given a clear picture that the deceased who was travelling in the general compartment from Hyderabad to Chennai Express had accidentally fallen down from the running train through door way due to shakes and jerks of the train and died on the spot. Based on the Inquest report, the Tribunal framed the following issues, to the following effect:

(i) Whether the applicants are the only Dependants of the deceased?

(ii) Whether the deceased was a bonafide passenger as alleged?

(iii) Was there any untoward incident occurred on 19.05.2014 prior to 08.15 hours as defined under Section 123 (c) (2) of the Railways Act, 1989 as alleged?

(iv) Whether the applicants are entitled for the compensation as claimed and other relief if any?

5. The learned Tribunal also accepted the claim made by the claimants that when there was no oral evidence adduced by the respondents/applicants to controvert the specific stand taken by AW-1 and AW-2 in their depositions as well as the fact of collecting a journey ticket by Ravi Kiran on 18.05.2014 from Guntur to Chennai and the deceased boarding Hyderabad-Chennai train at about 10.00 pm on the said date, after parking his cycle at cycle stand at Guntur Railway station vide token No.1856, which fact was duly highlighted in the Inquest report prepared at the earliest point of time after the incident, it can be presumed that the deceased was a bona fide passenger and as the incident had happened while falling from running train carrying passengers, the same falls within the ambit of untoward incident, within the meaning of Section 123(c)(2) of the Railways Act, 1989. Further, it was recorded that there was no substance in the plea raised by the Railways to the contra and such finding of facts reached by the learned Tribunal holding that the claimants are entitled to get compensation as prescribed in Part 1 of the Schedule II of the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 along with interest at 6% p.a., cannot be faulted with, hence, this Court is not inclined to interfere with the said finding.

6. Further, the onus is on the Railways to prove that the deceased was not a bona fide passenger, since the normal presumption is that a passenger holds a valid ticket is a bonafide passenger. This has been settled by this Court while considering the similar issue in the case of A.Thanikachalam and Others Vs. The Union of India owning Southern Railway, rep. by its General Manager, Chennai in CMA Nos. 3508 & 2787 of 2008. I have held so in paragraphs nos.15, 16 & 17 is extracted hereunder:-

15. In the cases on hand, as mentioned already, when it is an admitted fact that both the deceased died in an untoward incident on the respective dates while travelling in the train, the onus is on teh Railways to prove that the deceased were not bona fide pasengers, since the normal presumption is that a passenger in a train holds a valid ticket. In fact, under similare circumstances, this Court in the case of The Union of India owning Southern Railway by its General Manager, Chennai v. G.Jayalakshmi and others, 2012 (3) CTC 741, while considering an identical issue, has held as follows:-

15. This Court in similar circumstances in the case of S.Poonkodi and others v. The Union of India, Southern Railway, ‘CDJ 2007 MHC 3784, observed as hereunder:-

16.....Moreover, if the deceased had travelled as a ticketless traveller, one wuld normally expect the Railway Authorities to have detected such ticketless traveling. When a person dies in an accident by falling down from train, it is not possible for the legal representatives to produce the ticket or valid authority to travel in the train. Depending upon teh facts and circumstances of a given case, the Tribunal/the Appellate Court infer about the deceased being a bona fide passenger. In the present case, facts and circumstances prima facie indicate that the deceased was a bona fide passenger, who lost his life in the Railway incident.

16. At this juncture, it is also relevant to point to the observation made by the Honourable Supreme Court reported in Bimla Devi and others v. Himachal Road Transport Corporation and others, 2009 (1)TN MAC 700 (SC) : AIR 2009 SC 2819, wherein while dealing with a claim arising under the Motor Vehicles Act, the Honourable Supreme Court observed that it was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be doen by the Claimants and the Claimants were merely to establish their case on teh touchstone of preponderance of probability. It went on to observe that the standard of proof beyond reasonable doubt could not applied in the case of Claim Petitions.

17. It is no doubt true that the position of law as provided in Section 106 of the Evidence Act is that if a fact is within the special knowledge of a person, the burden of proving such fact is on that person and as provided in Illustration (b) of that Section, if a person is charged with travelling on a Railway without a ticket, the burden or proving that he had a ticket is upon him. But, such principle is not applicable to a case of a dead person, who was proved to have died in the course of Railway travel and whose body was taken in custody of the Railway Police. In such a situation, it is the duty of the Railway Authority to first give evidence that he was without a valid ticket and if such evidence is given, the onus shifts upon the Claimants to prove that he was a bona fide passenger having a valid ticket. In this case, as no person on behalf of the Railways has given any such evidence nor as any person come forward to disclose as to what articles were found with the victim, I am of the considered view that the initial burden of proving the said fact had not been discharged. In such circumstances, in the absence of any evidence of the Railway Authorities asserting absence of valid ticket, I am of the opinion that there is no just reason to discard the evidence of the Claimants...

7. In the light of the above, as the finding of facts given by the learned Tribunal is purely based on the inquest report submitted by the Railway Police, this Court does not find any infirmity to interfere with the same. Hence, the appeal filed by the appellant is liable to be dismissed.

8. Accordingly, the appeal fails and hence, dismissed. No costs. Consequently, connected miscellaneous petition is closed.

9. The learned counsel appearing for the applicants/respondents fairly submitted that at the time of moving CMP.No.4255 of 2016, the appellant has deposited a sum of Rs.4,35,333/- alongwith interest. Therefore, the appellant is directed to deposit the balance amount of Rs.4,00,000/-, since the quantum of compensation has been enhanced from Rs.4,00,000/- to Rs.8,00,000/- as per the notification issued by the Ministry of Railways (Railway Board) New Delhi, dated 22.12.2016. Needless to say that when the appellant has already deposited a sum of Rs.4,35,333/- alongwith interest, the claimants are entitled to receive the same. Although the notification dated 22.12.2016, enhancing the quantum of compensation was issued with effect from 01.01.2017 and the application was filed on 21.11.2014 and registered on 24.11.2014, the appellant is liable to pay compensation of Rs.8,00,000/- from the date of registering the application i.e., 24.11.2014 along with interest @ 9%. Therefore, the appellant is directed to pay the claimants a sum of Rs.8,00,000/- along with interest at 9% with effect from 24.11.2014 less the amount which was already deposited. The balance amount of compensation shall be deposited within a period of four weeks from the date of receipt of a copy of this order. On such deposit being made, the claimants are entitled to withdraw the same
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