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2014 DIGILAW 84 (MAD)

Shameemunissa v. Union of India

2014-01-09

P.R.SHIVAKUMAR

body2014
JUDGMENT 1. This appeal has been filed under Section 23 of the Railway Claims Tribunal Act, 1987 challenging the order of the Railway Claims Tribunal, Chennai Bench, dated 07.12.2009 made in O.A.No.2009 00093 dismissing the claim application filed by the appellant herein claiming compensation under Section 124-A of the Railways Act, 1989 for the death of her son Aejaz Ebraheem. The appellant herein had preferred the claim application before the Tribunal and the same was taken on file as O.A.No.2009 00093. She had alleged in the claim application that the deceased Aejaz Ebraheem employed as Urdu teacher in Edapadi M.C. School in Kenthil, Salem, possessed a season ticket for traveling between Salem Railway Junction and Jolarpet Railway Junction; that as usual on 13.02.2009, he travelled in the general compartment of Kovai express bearing Train No.2676 from Salem to Jolarpet; that due to heavy crowd, he had to travel standing near the footboard in the General Compartment and that while the train was crossing Thirupathur Railway Station, he accidentally fell down due to Jerk and due to heavy crowd in the train, as a result of which he died on the spot. Describing the said occurrence as an untoward incident coming within the description of the of the said term found in Section 123 (c)(ii) of the Railways Act, 1989, the appellant had made the claim for compensation. 2. The claim made by the appellant before the Tribunal was resisted by the respondent contending that the claim of the appellant herein/applicant was solely based on the inquest report; that the accident did not happen as projected by the appellant herein in her claim application; that the death of the son of the appellant would have occurred in some other incident other than a fall from the running train and that hence the Union of India owning the Southern Railway (respondent herein) was not liable to pay any compensation to the appellant herein under Section 124-A of the Railways Act, 1989. In addition, the respondent had also contended that the deceased was not a bonafide passenger as the ticket held by the deceased, according to the respondent, did not authorize him to travel in Super Fast Trains. 3. The Tribunal, after enquiry, held that the deceased was a bonafide passenger holding a valid season ticket. In addition, the respondent had also contended that the deceased was not a bonafide passenger as the ticket held by the deceased, according to the respondent, did not authorize him to travel in Super Fast Trains. 3. The Tribunal, after enquiry, held that the deceased was a bonafide passenger holding a valid season ticket. However, it held that the deceased, having his residence at that relevant point of time at Thirupathur, in all probability, would have attempted to get down from the running train when the said train was passing through Thirupathur Railway Station, as it had no stoppage at Thirupathur and that hence the death of the deceased was due to his own criminal act of getting down from the running train in which event the respondent would not be liable to pay compensation. Based on the said finding, the Tribunal held that the respondent was absolved from its liability to pay compensation under Section 124-A of the Railways Act, 1989. In line with the said finding of the Tribunal, it dismissed the claim application made by the appellant herein by the impugned order dated 07.12.2009. Aggrieved by and challenging the said order of the Tribunal, the appellant herein has brought forth this Civil Miscellaneous Appeal on various grounds set out in the memorandum of Civil Miscellaneous Appeal. 4. The point that arises for consideration in the appeal is as follows: "Whether the Tribunal committed an error in holding that the deceased died due to his own criminal Act of getting down from the running train and hence the incident in which he died would not attract the definition of untoward incident found in Section 123 (c)(ii) of the Railways Act, 1989, as it is covered by the exemption provided under Section 124-A(c) of the said Act?" 5. The arguments advanced by Mr. T. Rajamohan, learned counsel for the appellant and by Mr. J. Harikrishna, learned counsel for the respondent were heard. The materials available on record were also perused. 6. The arguments advanced by Mr. T. Rajamohan, learned counsel for the appellant and by Mr. J. Harikrishna, learned counsel for the respondent were heard. The materials available on record were also perused. 6. The learned counsel for the appellant has vehemently contended that the Tribunal, after having found the deceased to be a bonafide passenger holding a valid season ticket, ought to have held that the appellant was entitled to get compensation under Section 124-A of the Railways Act, 1989 and that on the other hand, it has rendered a perverse finding based on surmises and suppositions to the effect that the deceased, having his residence at Thirupathur at the relevant point of time, in all probability should have died due to his own criminal act of getting down from the running train at Thirupathur Railway Station. According to the arguments advanced by the learned counsel for the appellant, for the said finding, there was no basis, whatsoever, except surmises. 7. Per contra, learned counsel for the respondent has contended that the Tribunal rightly held that the deceased died due to his own criminal act of getting down from the running train at Thirupathur which was not a stopping for the train in which he was travelling on the fateful day. It is the further contention of the learned counsel for the respondent that the deceased was holding a season ticket which did not authorize him to travel in Super Fast Trains and that hence he was not a bonafide passenger. 8. This Court scrupulously considered the above said contentions raised on both sides. 9. Regarding the question whether the deceased was a bonafide passenger holding a valid ticket for travelling in the train, the appellant herein/ applicant has taken a stand, which is cogent and uniform without any deviation. Clear averments have been made to the effect that the deceased was holding a valid season ticket for travelling between Salem Railway Station and Jolarpet Railway Station and on the date of occurrence he travelled in the general compartment of Kovai Express (T.No.2676). It has also been clearly averred by the appellant herein that due to heavy crowd, the deceased had to travel standing near the footboard and that while the train was crossing Thirupathur Railway Station, due to jolt and heavy crowd, he accidentally fell down from the running train and died on the way to the hospital. It has also been clearly averred by the appellant herein that due to heavy crowd, the deceased had to travel standing near the footboard and that while the train was crossing Thirupathur Railway Station, due to jolt and heavy crowd, he accidentally fell down from the running train and died on the way to the hospital. Evidence has also been adduced to the said effect through AW1, the appellant himself. She has also produced the attested copy of the season ticket bearing No.067236391 issued for the period from 27.01.2009 to 26.02.2009. It is true that she was not an eyewitness and fairly she did not project herself to be an eyewitness. However, during cross-examination, no suggestion was put to her to the effect that her son fell down from the train while attempting to get down from the running train and that such an attempt was a criminal act on his part. 10. It is also pertinent to note that the inquest report and the final report of the police who investigated the case, copies of which have been annexed to the FIR marked as Ex.A1, contains a statement to the effect that the deceased travelled in a general compartment standing near the footboard due to overcrowd and when the train was crossing Thirupathur Railway, he accidentally fell down from the train, caught in between the track, sustained grievous injuries and died on the spot. In none of the documents, the incident has been described to be one of fall due to an attempt to get down from the running train. In this regard, the learned counsel for the appellant drew the attention of this Court to the report of the Divisional Railway Manager, according to which, the deceased was holding a valid season ticket. The report of the Divisional Railway Manager marked as Ex.R1 recites the incident in the same way. It has not been stated therein that the deceased, in an attempt to get down from the running train, fell down and died. On the other hand, it has been stated that the deceased "had slipped and fell down" from the running train due to his carelessness. It has not been stated therein that the deceased, in an attempt to get down from the running train, fell down and died. On the other hand, it has been stated that the deceased "had slipped and fell down" from the running train due to his carelessness. From the evidence of the Station Master who deposed as RW1, it is obvious that normally through trains which do not stop at Thirupathur Station will be allowed to cross the Station Via Road No.3 and that on the fateful day, since Road No.3 was occupied by a goods train, Train No.2676-Kovai Express was allowed passage through Road No.4, a loop line, touching Platform No.2. It is his further assertion that he did not see the occurrence since the goods train was blocking his view and the fact that a passenger's body was lying almost near the end of Plot form No.2 was informed to him by the points man. It is the clear admission made by RW1 that the points man did not tell him that the deceased tried to alight from the train. The said admission of RW1 coupled with the fact that no one has stated that the deceased tried to get down from the running train and there is no oral or documentary evidence to the effect that the deceased tried to get down from the running train, will make it clear that the finding of the Tribunal in this regard is nothing but a perverse finding as it is not based on any legally reliable evidence and on the other hand, it is nothing but an inference based on surmises and suppositions. 11. When the Union of India wanted to project the act of travelling standing at the open doors of the compartment of a running train would amount to a criminal act, the Hon'ble Apex Court held that such an act of standing at the open doors of the compartment of the running train might be a negligent act or even a rash act, but it was certainly not a criminal act. It was held further by the Hon'ble Apex Court that the negligence of a passenger did not have any effect on the liability of the Railways. It was also held that the claimants therein were entitled to compensation with interest. It was held so in Jameela and Ors. It was held further by the Hon'ble Apex Court that the negligence of a passenger did not have any effect on the liability of the Railways. It was also held that the claimants therein were entitled to compensation with interest. It was held so in Jameela and Ors. V. Union of India reported in AIR 2010 SCC 3705. 12. Without any hesitation this Court shall hold that the finding of the Railway Claims Tribunal to the effect that the deceased, having his residence at the relevant point of time at Thirupathur, in all probabilities should have attemptted to get down from the running train is nothing but a perverse finding, totally unsustainable and liable to be set aside and reversed. Accordingly, the said finding of the Tribunal that the deceased fell down and died due to his own criminal act of getting down from the running train in a station where the train did not stop is set aside and reversed and this Court holds that the death of the deceased occurred due to accidental fall from the train and hence it falls within the definition of untoward incident found in Section 123(c)(ii) of the Railways Act, 1989. 13. In the foregoing paragraph this Court has held that the death of the deceased Aejaz Ebraheem occurred due to an accidental fall from the train coming within the definition of untoward incident. Perhaps the same is the reason why the learned counsel for the respondent has fallen back on the plea that the deceased was not a bonafide passenger. According to the arguments advanced by the learned counsel for the respondent, the deceased was holding a monthly season ticket, which did not authorize him to travel in super fast trains; that Kovai Express is a Super Fast Train and that since according to the respondent the season ticket was not sufficient for travel in Kovai Express, a Super Fast Train, the deceased should be construed to be an unauthorized passenger and not a bonafide passenger. Though the respondent herein raised the very same contention before the Tribunal, it was rightly discountenanced by the Railway Claims Tribunal. 14. The true copy of the season ticket with the copy of the ID Card has been marked as Ex.A5. Though the respondent herein raised the very same contention before the Tribunal, it was rightly discountenanced by the Railway Claims Tribunal. 14. The true copy of the season ticket with the copy of the ID Card has been marked as Ex.A5. The said ticket and the ID Card were found in the possession of the deceased and they were seized by the Railway Police, Jolarpet for investigation in Crime No.22 of 2009 registered under Section 174 Cr.P.C on receipt of the report informing that the dead body of the deceased was found on the track. Nothing is found in the season ticket restricting its validity to trains other than Super Fast Trains. Admittedly, the deceased travelled in the second class unreserved general compartment. The report of the Divisional Railway Manager marked as Ex.R1 does have a reference to the season ticket held by the deceased. It has been stated in the report that the deceased travelled in the general coach of Train No.2676 – Kovai Express from Salem holding ticket No.067236391 (monthly season ticket). Apart from the above said particulars, the report does not refer to any condition regarding restriction excluding Super Fast Trains as contended by the learned counsel for the respondent. The report does not state that the deceased was not a bonafide passenger. On the other hand, an attempt was made by the Divsional Railway Manager to contend that the deceased fell down and died due to his own negligence (carelessness) and thereby disown the liability to pay compensation for the death of the deceased in an untoward incident. 15. The aspects traversed above will make it clear that the contention of the counsel for the respondent to project the deceased to be an unauthorized passenger and not a bonafide passenger turns out to be a contention untenable and liable to be rejected. A learned single Judge of Andhra Pradesh High Court in K. Vidya Kumari and Others V. Union of India, South Central Railway reported in 2004 ACJ 1420 made the following observations: "The explanation contained in Section 124-A of the Railways Act, clearly contemplates that a person who purchased a valid ticket for travelling by a train carrying passengers on any day or possess a valid platform ticket, and if he becomes a victim of an untoward incident, he is entitled for compensation. The section does not further clarify that the passenger must possess the valid ticket of the same train from which he had an accidental fall. The fact that even a platform ticket holder is also entitled for compensation, itself, is a clear indication that any person who is having a valid railway ticket for travelling by a train carrying passengers on any date, and becomes a victim of an untoward incident, he is entitled for compensation." In the said case also, the Tribunal awarded compensation with interest at the rate of 12% per annum. Similar is the view of a learned Single Judge of Karnataka High Court in Smt. Vinodamma & Ors Vs. Union of India reported in AIR 2010 Karnataka 174. In the said judgment, the Karnataka High Court has made the following observations: "A plain reading of the said explanation does not give room to take the view that in order to be considered as coming within the definition of 'passenger' both in Section 124-A and Section 2(29) of the Railways Act, the said person must hold a valid ticket to travel as a passenger in a particular train. The use of the expression in the explanation "by a train carrying passengers" would imply that the person holding a valid ticket can travel in any train which takes him to his destination and the use of the indefinite article "a" and not the definite article "the", therefore, would imply that the framers of the Act or the legislation had in view the possibility of a person holding a valid ticket to travel by any train that takes him to his destination." A similar view was expressed by a learned Single Judge of this Court (Hon'ble Justice S. Manikumar) in Union of India Vs. V. Kakshmana Rao and Others (C.M.A.No.569 of 2010). 16. Per contra, learned counsel for the respondent relied on the Full Bench Judgment of the Allahabad High Court in Smt.Sundri and Others Vs. Union of India and another reported in AIR 1984 Allahabad 277 wherein it has been stated that the expression "passenger" does not include trespasser or person travelling without ticket, pass or authority. 16. Per contra, learned counsel for the respondent relied on the Full Bench Judgment of the Allahabad High Court in Smt.Sundri and Others Vs. Union of India and another reported in AIR 1984 Allahabad 277 wherein it has been stated that the expression "passenger" does not include trespasser or person travelling without ticket, pass or authority. The said judgment also will not help the learned counsel for the respondent to substantiate his contention, because even in the said judgment it has been held that a person holding a ticket or season ticket and even a person travelling with the permission of the Railway Authority shall not be construed to be a trespasser and he will be construed to be a bonafide passenger. 17. Furthermore, the stand taken by the respondent would show a tendency to disown its liability by shifting its stand. At the first instance, it was contended by the respondent that the death of the deceased did not occur due to a fall from the train. Then the respondent took a different stand that the deceased fell down due to his own criminal act of getting down from the running train. Again as a third stand, the respondent took a plea that the deceased holding a season ticket was an unauthorized passenger in Train No.2676 – Kovai Express, since according to the respondent the season ticket was not valid for travel in the Super Fast Trains. There is no evidence, whatsoever, to show that the season ticket for travelling between two stations was not issued authorizing travel in Super Fast Trains also provided the trains do have stoppings at the stations concerned. In case a passenger seeks a season ticket for travel between two stations in any train including Super Trains, the same cannot be refused and at the best the Railway Administration can collect charges corresponding to the fares in Super Fast Trains assuming that on all trips the travel shall be made in Super Fast Trains. It is not the case of the respondent that the deceased travelled in a reserved compartment. On the other hand, it remains an admitted fact that the deceased travelled in an unreserved II Class General Compartment. Hence, the contention of the learned counsel for the respondent that the deceased was not a bonafide passenger holding a valid ticket has got to be rejected as untenable. On the other hand, it remains an admitted fact that the deceased travelled in an unreserved II Class General Compartment. Hence, the contention of the learned counsel for the respondent that the deceased was not a bonafide passenger holding a valid ticket has got to be rejected as untenable. Accordingly, the above said contention of the learned counsel for the respondent is rejected. 18. In case of death of a passenger in an untoward incident as described in Section 123 (c)(ii) of the Railways Act, 1989, strict liability is cast on the Railway Administration to pay compensation and it cannot avoid its liability to pay compensation in such cases contending that there was negligence or contributory negligence on the part of the deceased, unless such case can be brought within any one of the exceptions provided under Section 124-A (c) of the Railways Act, 1989. In Union of India Vs. Prabhakaran Vijaya Kumar and Others reported in (2008) 4 MLJ 323 (SC), the Hon'ble Supreme Court held that the Union of India administration owning the Railway Administration was attached with strict liability or no-fault liability and hence it cannot take a defence of no-fault or contributory negligence for resisting the claim made by the legal heirs of the deceased, who died in an untoward incident. 19. We have seen supra that the Tribunal's decision that the death of the deceased would fall within the exception, namely death due to his own criminal act of getting down from the running train, was perverse and that the case does not fall under any one of the exceptions provided under Section 124-A(a) to (i) of the Railways Act, 1989. Hence, the respondent is found liable to pay compensation to the appellant, the mother of the deceased as his legal heir, for the death of her son Aejaz Ebraheem in an untoward incident that occurred on 13.02.2009 at Thirupathur Railway Station, while he was travelling from Salem to Jolarpet in Train No.2676-Kovai Express. It is not in dispute that the appellant is the sole legal heir of the deceased and the Legal Heir Certificate produced by her has not been disputed. As per the provisions of the Act, a fixed amount, namely Rs.4,00,000/- is payable in case of death. It is not in dispute that the appellant is the sole legal heir of the deceased and the Legal Heir Certificate produced by her has not been disputed. As per the provisions of the Act, a fixed amount, namely Rs.4,00,000/- is payable in case of death. Even though the Railways Act does not provide for awarding interest there is no provision either in the Railways Act or in the Railway Claims Tribunal Act preventing award of interest on the compensation. In a number of cases it has been held that reasonable interest can be awarded. Considering the nature of the stand taken by the respondent and the fact that the respondent has chosen to deny its liability on the premise that the deceased fell down and died due to his carelessness as found in Ex.R1, whereas such a defence is not available to the respondent since strict liability is cast on the Railways in case of death in an untoward incident, this Court is of the considered view that awarding interest at the rate of 12% per annum shall be quite reasonable. In the result, the appeal is allowed and the order of the Railway Claims Tribunal, Chennai Bench dated 07.12.2009 made in O.A. No. 93 of 2009 disallowing the claim made by the appellant for compensation is set aside. The respondent is directed to pay a sum of Rs.4,00,000/- (Rupees Four Lakhs only) as compensation to the appellant together with an interest calculated on the said amount from the date of filing of the claim application till realization at the rate of 12% per annum. The respondent shall also pay to the appellant the costs in the appeal.