UNION OF INDIA v. JESSY SIMON

ADV. SRI.V.B.NARAYANAN FOR R1 TO 6 SRI.T.N.SUKUMARAN FOR R1 TO 6 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10/08/2009, THE COURT ON 18/08/2009 DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A. NO: 78 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th Day of August, 2009. JUDGMENT Joseph Francis J. The appellant is the respondent in O.A. No.48/2004 on the file of Railway Claims Tribunal, Ernakulam Bench and the respondents herein are the applicants in the above case.

2. The respondents herein are the wife, daughters, son and mother of late Simon. They have filed an application for compensation from the appellant for the death of Simon in an untoward incident which occurred on 26.07.2001 between Wimco and Kattikkam Stations. The respondents have alleged that the deceased was travelling in subarban train in Thiruvallluvar District, M.F.A. NO: 78 OF 2009 :2: Chennai and that during the course of journey he fell down from the running train thereby sustained injuries and succumbed on the spot.

3. The appellant filed reply statement contending that the deceased was not a bonafide passenger, that the deceased was run over by the train while crossing the railway track at the railway station on 26.7.2001, and that deceased was knocked down and run over by the train and as such the incident cannot be termed as an untoward incident.

4. The appellant is not liable for the death of trespasser. The respondents are not entitled to get any compensation as claimed from the appellant herein.

5. The evidence in the above case consists of deposition of PW1 and Exts. A1 to A4 marked on the side of the applicants. From the side of the appellant/ respondent Ext.R1 marked. After the trial by the judgment dated 27.11.2008 passed in O.A. No.48/2004 the Tribunal allowed the application directing the appellant to pay a sum of Rs.4 lakhs. Against that judgment, the respondent filed this M.F.A. NO: 78 OF 2009 :3: appeal. 6 Heard the learned counsel for the appellant and the learned counsel for the respondents.

7. Learned counsel for the appellant submitted that the deceased was not a bonafide passenger and that the Tribunal ought to have found that the death occurred due to deceased being run over by train after knocking him down.

8. Learned counsel for the respondents supported the judgment. Learned counsel for the respondents invited our attention to the decision reported in Joji C John V. Union of India (2002(1) KLT 678), in which it is held that: “When there is 'untoward incident' even when no negligence is proved on the part of Railway Officers, Railway is liable to pay compensation as prescribed in the schedule, Sec S.124A and 123(c) of the Railway Act, 1989 as amended by Railway (Amendment) Act, 28 of 1994. Even if there is no negligence on the part of the Railway employees, it cannot be presumed that injuries caused to the victim M.F.A. NO: 78 OF 2009 :4: of the accident are self inflicted injuries so as to deny compensation as provided under Railway Accident and Untoward Incidents (Compensation) Rules,

1990. In the above circumstances, the burden is on the Railway to prove that claimant is not a bonafide passenger.”

9. In the decision reported Union of India V. Prabhakaran Vijaya Kumar (2008(2) KLT 700 (SC), it was held that: “It will not legally make any difference whether the deceased was actually inside the train when she fell down or whether she was only trying to get into the train when she fell down. In our opinion in either case it amounts to an 'accidental falling of a passenger from a train carrying passengers'. Hence, it is an 'untoward incident' as defined in S.123(c) of the Railways Act. No doubt, it is possible that two interpretations can be given to the expression 'accidental falling of a passenger from a train carrying passengers', the first being that it only applies when a person has actually got inside the M.F.A. NO: 78 OF 2009 :5: train and thereafter falls down from the train, while the second being that it includes a situation where a person is trying to board the train and falls down while trying to do so. Since the provision for compensation in the Railways Act is a beneficial piece of legislation, in our opinion, it should receive liberal and wider interpretation and not a narrow and technical one. Hence in our opinion the latter of the above mentioned two interpretations i.e., the one which advances the object of the statute and serves its purpose should be preferred. If we adopt a restrictive meaning to the expression “accidental falling of a passenger from a train carrying passengers” in S.123(c) of the Railways Act, we will be depriving a large number of railway passengers from getting compensation in railway accidents. It is well known that in our country there are crores of people who travel by railway trains since everybody cannot afford travelling by air or in a private car. By giving a restrictive and narrow meaning to the expression we will be depriving a large number of victims of train accidents (particularly poor and middle class people) from getting compensation M.F.A. NO: 78 OF 2009 :6: under the Railways Act. Hence, in our opinion, the expression 'accidental falling of a passenger from a train carrying passengers' includes accidents when a bona fide passenger i.e., a passenger travelling with a valid ticket or pass is trying to enter into a railway train and falls down during the process. In other words, a purposive, and not literal, interpretation should be given to the expression.”

10. In the present case, there is no eye witness to the accident. First applicant filed proof affidavit stating that her husband Simon was working in a hotel at Kathivakkom, Chennai and there is a branch at Hyderabad. The hotel Manager directed him to work at Hyderabad, for some time, as usual. He had worked in that hotel in previous occasions. On 25.7.2001 evening, Simon telephoned her and told her that he had been deputed to work at Hyderabad hotel. So he purchased a ticket and would go to Hyderabad by Charminar Express train on 26.7.2001. One of the co-workers of Simon telephoned and informed her that Simon died in a train accident, M.F.A. NO: 78 OF 2009 :7: while proceeding to Hyderabad. In that affidavit it is further alleged that Simon while travelling by Charminar express Train from Chennai to Hyderabad on 26.7.2001 after about 10.47 hours Simon happened to fall due to the jerk of train between Wimco - Kathivakkam 11/20-24 (DL). The deceased was a bonafide passenger and his ticket is irrecoverably lost. Ext.A1 death report and Ext.A2 postmortem certificate would reveal that death of Simon has taken place at railway track in between Wimco - Kathivakkam station on 26.7.2001 and the cause of death as per postmortem report is due to the multiple injuries sustained. The appellant has not chosen to examine the police officer, who filed Ext.R1 report after investigation. The evidence adduced from the side of Railway administration will not prove that deceased had died because of suicide or attempt to commit suicide or as a result of any self inflicted injuries or by his own any criminal act or that the death was caused by any natural means of medical or surgical treatment. Therefore the appellant cannot be given to the benefit of five M.F.A. NO: 78 OF 2009 :8: exceptions mentioned in Section 124A of the Act. Therefore, from the evidence on record, we are of the view that the learned Tribunal has rightly concluded that the case falls under definition of 'untoward accident' as contained in Section 123(c)(2) of the Act. Therefore, this appeal is liable to be dismissed as it is without any merits. Accordingly, this appeal is dismissed. There is no order as to costs. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/