M.Nagendiran v. Union of India, Owning Southern Railway rep. by General Manager, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 18.11.2008CORAM:THE HONOURABLE MR.JUSTICE S.PALANIVELUC.M.A.Nos.1477 of 2001 & 656 of 2002C.M.A.No.1477 of 2001:1. M.Nagendiran2. Kamatchi ... Appellants/ApplicantsVs.Union of India,Owning Southern Railwayrep. by General Manager,Chennai 3. ... Respondent/respondentPrayer: Appeal filed under Section 23 of the Railway Claims TribunalAct 54 of 1987, against the award dated 16.08.2001 passed inO.A.No.2000 00017 the file of the Railway Claims Tribunal, Chennai.For Appellants : Mr.T.RajamohanFor Respondent : Mr.R.GunasekaranC.M.A.No.656 of 2002:A.Mangalam ... Appellant/ApplicantVs.Union of India,Owning Southern Railwayrep. by General Manager,Chennai 3. ... Respondent/respondentPrayer: Appeal filed under Section 23 of the Railway Claims TribunalAct 54 of 1987, against the award dated 08.02.2002 passed in O.A.No.2000 00043 on the file of the Railway Claims Tribunal, Chennai.For Appellant : Mr.T.RajamohanFor Responden : Mr.R.Gunasekaran https://hcservices.ecourts.gov.in/hcservices/ C O M M O N J U D G M E N T In the claim petition in O.A.No.17 of 2000 (CMA No.1477 of2001), the following are alleged:-The first applicant is the son and the second applicant ismother of the deceased S.Manoharan. The said Manoharan, whiletravelling by EMU train on 05.08.1999, accidentally fell down from itat Aavadi railway station at about 20.30 hours and he died atGovernment General Hospital, Chennai. Hence the petition forcompensation has been filed by the legal heirs of the deceased. 2. In the claim petition in O.A.No.43 of 2000 (CMA No.656 of2002), the following are stated:-The applicant is the mother of the deceased Shanmugam, who issaid to have accidentally fallen from the moving EMU train on14.08.2000 at 13.30 hours at KM 34/22-24. Hence, the application forcompensation is filed. 3. The following are the allegations contained in the countersfiled by the respondent/Southern Railway:- It is denied that the deceased Shanmugam died on the spot asmentioned by the claimant. There was no eye witness or chain pullingby co-passenger to prove that the deceased fell from the runningtrain. The incident of falling from train was not reported by anypassenger to the railway authorities. In the absence of eye witness,it is to be taken that the deceased died while crossing the railwaytrack and therefore, the Souther Railway is not liable to paycompensation for the death of the trespassers. The appellants have toprove that the deceased were the bona fide passengers and therelationship of the claimants with the deceased has also to beestablished. Hence, the claim petitions have to be dismissed.4. Considering the rival pleas, the Railway Claims Tribunal,Chennai Bench, dismissed both the claim petitions by observing thatthe claimants failed to prove that the deceased died in an untowardincident due to accidental fall from EMU train. 5. The accident in both the cases have taken place ondifferent dates in timings and areas. The claimants' contentions arethat while the deceased were travelling by the EMU train, theyaccidentally fell down from the train, thereby died. It is the uniformversion of the Southern Railway that both the deceased met with theirgruesome death while they crossed the railway line. Whether both thedeceased died while they crossed the railway line is to be decidedonly with the available materials, since there was no eye witnessbefore the Tribunal. https://hcservices.ecourts.gov.in/hcservices/

6. On a careful scrutiny of the features available in thepost-mortem Certificates, it can safely be held that the death couldhave definitely been caused accidentally and due to sudden fall fromthe train alone and not by dashing of the train, while they crossedthe railway line. The following are the findings contained in theautopsy report relating to the deceased S.Manoharan:-“1. Abrasion on right cheek 4 x 3 cm; on front ofright leg 2 x 1cm; on front of right knee 1 x 0.5 cm; onouter aspect of right thigh 4 x 1cm; on front of left knee2 x 0.5 cm.2. Traumatic amputation of right big toe3. Laceration 3 x 0.5cm x bone deep on right sideof scalp; on top of middle of scalp 4 x 0.5cm x bone deep.On dissection of head: Extensive bruising of scalptissues.Base of skull had fissured fracture 5 cms long onmiddle cranial fossa on left side.Brain had diffused bilateral sub dural and subarachnoid haemorrhage with contusion. Bruising 4 x 3 x 0.5 cm on the left temporal lobe.HEART: Chambers contained fluid blood. Coronariespatent.LUNGS: Congested HYOID BONE: IntactSTOMACH: Empty Mucosa-congested.”The observations found in the post morterm report pertainingto the deceased Shanmugam:-“1. Contusion Occipital Region of scalp 5 x 5 cm2. Contusion over the Right eye brow 3 x 3 cm3. Multiple abrasion over right axilla, right hipright thigh varying from 1 – 3 cm with grease marks.4. Contusion with abrasion right forearm 10 x 5cm.5. Abrasion left forearm with peeling of skin 5 x4 cm.6. Cut of left wrist.7. Contusion over the left thigh 6 x 5 cm with cutof thigh bone (femur). 8. Contusion with abrasion 10 x 6 cm left belowknee joint.9. Contusion with abrasion over right leg belowknee join 10 x 5 cm stain of grease and mud over theinjuries.”7. Both the post-mortem certificates potray the injuriessustained by the deceased while they have fallen down from the trainaccidentally, which was running at the time of the accident. Had theindividuals died while they crossed the railway line, their bodies https://hcservices.ecourts.gov.in/hcservices/ might have been mutilated and the injuries as found in the post-mortemcertificates could not have been caused. In other words, it can bestated that the injuries as mentioned in the autopsy certificatescould not have occurred, had the accident has taken place while thedeceased were crossing the railway line as alleged by therespondent/Southern Railway. 8. In both the cases, while the inquest report was prepared,the Panchayatars have unanimously opined that the death was due toaccidental fall from the moving train. 9. The learned counsel for the appellants would draw theattention of this court to various provisions in the Railway Act 1989(herein in after referred as “Act”). For the purpose of deciding thematter in issue Sections 123 and 124-A of the Act are relevant and itis advantageous to extract them, which read thus:-“123. Definitions.- In this Chapter,unless the context otherwise requires,-(a) “accident” means an accident of the naturedescribed in Section 124;(b) “dependant” means any of the followingrelatives of a deceased passenger, namely:-(i) the wife, husband, son and daughter, and incase the deceased passenger is unmarried or is a minor,his parent;(ii) the parent, minor brother or unmarriedsister, widowed sister, widowed daughter-in-law and aminor child of a predeceased son, if dependant wholly orpartly on the deceased passenger;(iii) a minor child of a predeceased daughter, ifwholly dependant on the deceased passenger;(iv) the paternal grandparent wholly dependant onthe deceased passenger.(c) “untoward incident” means-(1) (i) the commission of a terrorist act withinthe meaning of sub-section (1) of Section 3 of theTerrorist and Disruptive Activities (Prevention) Act,1987 (28 of 1987); or(ii) the making of a violent attack or thecommission of robbery or dacoity; or(iii) the indulging in rioting, shoot-out orarson, by any person in or on any train carrying passengers, orin a waiting hall, cloakroom or reservation or bookingoffice or on any platform or in any other place withinthe precincts of a railway station; or(2) the accidental falling of any passenger froma train carrying passengers.” https://hcservices.ecourts.gov.in/hcservices/ 124-A. Compensation on account of untowardincidents.- When in the course of working of a railwayan untoward incident occurs, then whether or not therehas been any wrongful act, neglect of default on thepart of the railway administration such as sould entitlea passenger who has been injured or the dependant of apassenger who has been killed to maintain an action andrecover damages in respect thereof, the railwayadministration shall, notwithstanding anything containedin any other law, be liable to pay compensation to suchextent as may be prescribed and to that extent only forloss occasioned by the death of, or injury to, apassenger as a result of such untoward incident. Provided that no compensation shall be payableunder this section by the railway administration if thepassenger 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 ofintoxication or insanity;(e) any natural cause or disease or medical orsurgical treatment unless such treatment becomesnecessary due to injury caused by the said untowardincident.Explanation.- For the purposes of this section,“passenger” includes-(i) a railway servant on duty; and(ii) a person who has purchased a valid ticketfor travelling, by a train carrying passengers, on anydate or a valid platform ticket and becomes a victim ofan untoward incident.” 10. From the above said provisions of law, it is deduciblethat falling from a train carrying passengers accidentally is an“untoward incident”. This Court is of considered opinion that both thedeceased fell down from the moving train accidentally and hence thedeath was the out come of an “untoward incident”.11. Section 124A of the Act provides for compensation onaccount of “untoward incident” and Sub Sections (a) to (e) further setout the death by other means, which disqualify grant of compensationby the railways. It is pertinent to note that the accidental fall,which is an “untoward incident” has not been included and hence ifanyone died by an accidental fall from the train, he is entitled forcompensation from the railways. https://hcservices.ecourts.gov.in/hcservices/

12. It is the further version of the Southern Railway that thedeceased were unauthorised passengers and that no ticket was recoveredfrom the scene of occurrence, even though other articles were seized.The above said contention does not stand for a minutes scrutiny forthe reason that when a person accidentally fell down from the trainand sustained injuries, there must be every chance for missing of theticket. 13. The learned counsel for the appellant would contend thatthe burden of proof lies on the respondent/railways to prove that thedeceased were the ticketless passengers at the time of accident, butin this case they failed to prove the same. In support of hiscontention, the learned counsel for the appellants/claimants relied ona decision reported in 2001 (1) T.N.L.J.146 (D.Rajathi and others v.Union of India owning Southern Railway, rep. by its General Manager,Chennai.), in which, this Court has held that in so far as the theclaim for ticketless travellers is concerned, the burden casts uponthe railway administration, and when the railway fails to prove thesame, the presumption is that the deceased was a bona fide passenger.14. In a decision reported in 2008 (1) KLJ 623 (K.V.Thomas v.Union of India), a Division Bench of the Kerala High Court has heldthat mere negligence on the part of the bona fide passengers is not aground to deny the compensation for untoward incident. Like Section163A of the Motor Vehicles Act, strict liability is cast on therailway administration for payment of compensation. It is furtherobserved that the negligence of the claimant cannot dis-entitle himfrom claiming compensation under Section 124A of the Act. 15. An identical view has been taken in the cases reported in2004 ACJ 713 (Agam Shanthamma v. Union of India, rep. by GeneralManager, South Central Railway.) and in AIR 2007 Rajasthan 38 (Unionof India v. Hari Narayan Gupta & another).16. From the above said decisions, it could be seen that it isthe consistent view of various High courts that in the like cases, itis for the railways to show that the deceased was a ticketlesspassenger and he was not a bona fide passenger and in case of thefailure on the part of the railways, it must be presumed that thedeceased was a bona fide passenger. Adverting to the cases on hand,the railways has not produced any materials to infer that the deceasedwere not bona fide passengers. Hence, it has to be inevitably presumedthat the deceased were bona-fide passengers and the dependants areentitled for compensation.17. In view of the above discussions and observations and inthe light of the above referred legal principles, this court is ofthe considered view that the deceased were bona fide passengers andthey met their end by accidental falling from the moving train and https://hcservices.ecourts.gov.in/hcservices/ hence their dependants are entitled for compensation. Hence, theJudgements passed by the Railway Claims Tribunal in both the casessuffer from legal infirmities, which deserve to be interfered with bythis Court. This Court upsets the upshots of the Railways ClaimsTribunal and these appeals have to be allowed. 18. Accordingly, both the appeals are allowed and theJudgements dated 16.08.2001 and 08.02.2002 passed by the RailwaysTribunal in O.A.Nos.17 and 43 of 2000 are set aside and therespondent/railways is directed to pay a sum of Rs.4,00,000/- to thedependants of the deceased in each claim petition. 19. As regards the rate of interest payable on compensation tothe claimants, following the decision of the Hon'ble Apex Courtreported in 1993 ACJ 235 (SC) (A.A.Haja Muniuddin v. Indian Railways)and the decision of a Division Bench of the Madhya Pradesh High Courtreported in 1995 ACJ 644 (MP) (Union of India v. Laxmi Pati), it isheld that the claimants in these cases are entitled to interest forthe compensation amount at the rate of 12% per annum from the date ofapplication.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo:1. The Railway Claims Tribunal, Chennai Bench, Chennai.2. The Section Officer,V.R.Section, High Court, Madras.2 cc To Mr.T.Rajamohan, Advocate, SR.64328, 64329.C.M.A.Nos.1477 of 2001 & 656 of 2002 RSI(CO)RVL 31.12.2008