Kerala High Court · 2009

ADV. SRI.VARGHESE P.THOMAS, SC, RAILWAYS FOR R1 & R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 2/03/2009, THE COURT ON 12.3.2009 DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A.No. 32 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the ..... day of March, 2009 JUDGMENT Joseph Francis, J. This appeal under Section 23 of the R.C.T. Act, 1987 (for short 'the Act') is filed by applicants 2 & 3 in T.A. No.67 of 2001 on the file of the Railway Claims Tribunal, Ernakulam Bench. The said petition was filed under Section 16 of the Act.

2. The facts of the case are briefly as follows. The above case was originally filed as O.P. (Pauper) No.128 of 1993 by the applicants 1 and 2, before the Sub Court, Thiruvananthapuram, which was later converted into O.S.No. 811 of 1996 and tried by the Sub Court and transmitted to the Railway Claims Tribunal because of non-maintainability of the suit before it, in view of Railway's (Amendment) Act, 1994 (Act 28 of 1994). M.F.A.No. 32 of 2004 2

3. The first applicant, Sreekumari, allegedly a Hindu-widow of Rajasekharan Thampi, has moved the Tribunal by filing T.A. 67 of 2001, claiming compensation for an amount of Rs.4 Lakhs from the respondent Railway for herself and for her minor daughter Lakshmi, for the death of Rajasekharan Thampi, who allegedly sustained injuries by falling down from the Island Express train, due to sudden jerk, at Kuzhithurai Railway Station and succumbed to the injuries sustained. The first applicant Sreekumari having died pendente lite, the third applicant, who is the mother of the 1st applicant, has been impleaded as per order dated 10.1.2001 in I.A.N0.4476 of 2001 of the Sub Court, Thiruvananthapuram, where the case was originally filed as O.S.No.811 of 1996.

4. After receipt of the case from the Civil Court, the respondent Railway Administration entered appearance before the Tribunal and filed a reply statement dated 17.2002. The Railway Administration contended that the provisions of Section 124 of the Railways Act, 1989 cannot be invoked in the case as one Smt. Usha of Thiruvananthapuram had contacted the Railway Administration stating M.F.A.No. 32 of 2004 3 herself as the wife of deceased Rajasekharan Thampi, who died due to the fall from the train at Kuzhithurai. The new provision of 'Untoward Incident' laid down under Sections 123(c) and 124A of the Railways Act, 1989, cannot be applied in this case, since the change of law came into force with effect from 1.8.1994 and those provisions in the Statute did not have retrospective application. So, the respondent pleaded for dismissal of the case.

5. Before the Sub Court, PWs. 1 and 2 and DWs. 1 and 2 were examined and Exts. A1 to A7 were marked at the O.P. (Pauper) stage to prove the income of the petitioners. The Railway Claims Tribunal found that the application is maintainable before the Tribunal. But the Original Petition was dismissed, finding that there was no proof of customary marriage between the first applicant and Rajasekharan Thampi and that the applicants have no right to claim compensation for the death of Rajasekharan Thampi. On the basis of that finding, the Railways Tribunal arrived at a conclusion that the respondent has no obligation to compensate applicants 1 and 2 for the death of M.F.A.No. 32 of 2004 4 Rajasekharan Thampi. Against that order applicants 2 and 3 filed this appeal.

6. Heard the learned counsel for the appellants and the respondents.

7. On perusing the records, it is seen that the Railway Claims Tribunal has not recorded the statement of witnesses, but had relied on the statement of witnesses recorded by the Sub Court, Thiruvananthapuram, for disposing of the case. The first applicant was examined before the Sub Court for the purpose of proving the fact that she was not able to pay Court Fee for instituting the suit. The first applicant Sreekumari died on 10.11.2000, much before the commencement of the trial by the Sub Court, Thiruvananthapuram. Therefore, the first applicant had no occasion to depose before the Sub Court in O.S.No.811 of 1996 as a witness with regard to the marriage with deceased Rajasekharan Thampi.

8. PW1, the mother of deceased Sreekumari, deposed that the marriage between late Rajasekharan Thampi and Sreekumari was M.F.A.No. 32 of 2004 5 solemnised on 3.2.1989 and that a Pandal was erected for that marriage and about 50 persons from that locality participated in that function. PW1 further stated that to give legal validity to that function, Rajasekharan Thampi and Sreekumari got their marriage registered as per Ext.A1 before the Sub Registrar, Pathanapuram. Witnesses from the side of bride and bridegroom put their signatures in Ext.A1. The second applicant was born on 26.11.1989. It was almost 1 ½ years thereafter that Rajasekharan Thampi died.

9. It is seen that the birth of the second applicant was registered with the appropriate authority within three days, which is evident from Ext.A2, birth certificate. In Ext.A2, the name of Rajasekharan Thampi is shown as father of the second applicant. Even if the marriage between Sreekumari and Rajasekharan Thampi is void or voidable, the second applicant, who was born in the marriage between them, can be treated as legitimate child of Rajasekharan Thampi in view of Section 16 of the Hindu Marriage Act. M.F.A.No. 32 of 2004 6

10. On considering all these aspects of the matter, we are of the view that the second applicant is the child of Rajasekharan Thampi and Sreekumari and she is entitled to get compensation for the death of her father, provided the Railways are liable to compensate his legal heirs for his death. Therefore, the learned Railway Claims Tribunal, Ernakulam is not justified in dismissing the application. In view of our finding that the second applicant is entitled to get compensation for the death of Rajasekharan Thampi, the learned Railway Claims Tribunal has to consider the question whether the respondent has any obligation to compensate the second applicant for the death of Rajasekharan Thampi and if so, to what extent. For considering that question, the case has to be remanded to the Railway Claims Tribunal.

11. In the result, the appeal is allowed. The case is remanded back to the Railway Claims Tribunal, Ernakulam and the Tribunal is directed to consider the question whether the respondent has any obligation to compensate the second applicant for the death of Rajasekharan Thampi and if so, what should be the amount. Sufficient opportunity must be given to both sides to adduce further evidence, if M.F.A.No. 32 of 2004 7 necessary. There is no order as to cost. The parties shall appear before the Railway Claims Tribunal, Ernakulam on 29.6.2009 to continue the proceedings. (K. BALAKRISHNAN NAIR) Judge (M.L. JOSEPH FRANCIS) Judge