Andhra Pradesh High Court - Amravati

K. Lakshmana Rao vs Union Of India on 29 December, 2023

       THE HON'BLE DR. JUSTICE K. MANMADHA RAO

                     C.M.A.No.246 OF 2019

JUDGMENT:

The Appellant herein are the applicant before The Railway

Claims Tribunal, Amaravati Bench, Amaravati (in short 'the

learned tribunal') filed the present Civil Miscellaneous Appeal

before this Court, aggrieved by the order dated 06.02.2019 passed

by the learned Tribunal in O.A-II(u) 121 of 2011.

2. The appellant herein is the injured has made a claim

before the learned tribunal seeking compensation of Rs. 8,00,000/-

along with interest from the respondent/ Railways on account of

amputation of his left hand and also sustained multiple injuries in

an untoward incident that occurred on 03.01.2011, while he tried

to go inside the compartment in Konark Express. The learned

tribunal after hearing on both sides, holding that the appellant has

not challenged the statement of Mastanaiah, as noticed in DRM

report that when said train was rolling on Platform No.2 of Tuni

Railway Station, one male person tried to board running train and

fell down between PF and train. On the face of it, merely because

he was holding a ticket, one does not become entitled to

compensation as such act amounts to self inflicted injury falling

within the exception Clause (b) to Proviso to Section 124-A of the

Railways Act, 1989, which absolves railway from paying any

compensation. Hence the learned tribunal dismissed the claim

application. Assailing the same, the present C.M.A came to be filed.

3. Heard Ms. N.S.Geetha Madhuri, learned counsel for the

appellant and Mr. J.U.M.V. Prasad, learned Central Government

Counsel for the respondents.

4. During hearing learned counsel for the appellant would

contend that the learned tribunal erroneously held that the

appellant was not a bonafide passenger and that the appellant has

not suffered any injury due to an untoward incident. The learned

tribunal without appreciated the applicability of the provisions of

the Railway Act and simply dismissed the claim of the appellant.

Therefore the C.M.A is liable to be allowed.

5. Learned counsel for the respondents would contend that

the appellant failed to submit injury/ discharge certificate of

hospital to establish that injuries were suffered on account of his

fall down from train. As per statement of B. Mastanaiah, who is

guard in passenger train stated that the train left Vijayawada at

14.55 hrs and arrived Tuni Railway Station at 19.25 hrs, on

platform No.2 and at that time he noticed that one male passenger

trying to board running train and fell in between the train and PF

resulting in amputation of left hand from shoulder. Therefore,

there is no fault or lapse on the part of the railways in the alleged

mishap and that the respondents are not liable to pay any

compensation to the appellants herein. The learned tribunal rightly

dismissed the claim made by the appellant after considering the

submissions of respondent. Hence the C.M.A is liable to be

dismissed.

6. Perused the record.

7. During hearing learned counsel for the appellant

submitted that this matter is squarely covered by this Court order

dated 29.09.2023 passed in C.M.A.No. 17 of 2020, wherein this

court following the decision of the Hon'ble Apex Court in

"Kamukayi & Ors. V. Union of India and Ors"1, wherein it was

held as follows:

"This court in the case of Rina Devi (Supra) has explained the burden of proof when body of a passenger is found on railway premises. While analysing the said issue, this Court has considered the judgement of Madhya Pradesh High Court in Raj Kumari v. Union of India and the judgements of Delhi High Court in Gurcharan Singh v. Union of India, Andhra Pradesh High Court in Jetty Naga Lakshmi Parvathi vs. Union of India and also considered the judgement of this Court in Kamrunnissa vs. Union of India and in para 29 concluded as thus-

"We thus hold that mere presence of a body on the railway premises will not be conclusive to hold that injured or deceased was a bona fide passenger for which claim for compensation could be maintained. However, mere absence of ticket with such injured or deceased will not negative the claim that he was a bona fide passenger. Initial burden will be on the claimant which 1992 SCC OnLine MP 96 2014 SCC OnLine Del 101 2011 SCC OnLine AP 828 (2019) 12 SCC 391 can be discharged by filing an affidavit of the relevant facts and burden will then shift on the Railways and the issue can be decided on the facts shown or the attending circumstances. This will have to be dealt with from case to case on the basis of facts found. The legal position in this regard will stand explained accordingly."

8. The Hon'ble Apex Court also discussed the same verdict

cited supra in "Union of India v. Rina Devi2" case also and

passed Award. Therefore, learned counsel for the appellant would

contend that the case law cited supra is squarely applicable to the

facts of this case. Therefore the appellant is entitled the claim as

prayed for.

9. In Rina Devi's case cited supra, the Hon'ble Supreme

Court held that, on the burden of proof, which emphasized that

any person found dead or injured on railway premises is presumed

to be a bona fide passenger unless the railway administration

proves otherwise. Therefore, the findings of the Tribunal are

perverse.

http://Indiankanoon.org/doc/94898543/

10. In the light of judgment of "Union of India v. Radha

Yadav3", wherein the Hon'ble Supreme Court held that

"because death is proved due to outcome of untoward incident of the deceased being a bona fide passenger, the adequate amount of compensation may be awarded."

11. During hearing learned counsel for the appellant drawn

the attention of this Court with regard to Section 123 and also 25

which reproduced hereunder:

Section 123 in The Railways Act, 1989

123. Definitions.--In this Chapter, unless the context otherwise requires,--

(a) "accident" means an accident of the nature described in section 124;

(b) "dependant" means any of the following relatives of a deceased passenger, namely:--

(i) the wife, husband, son and daughter, and in case the deceased passenger is unmarried or is a minor, his parent;

(ii) the parent, minor brother or unmarried sister, widowed sister, widowed daughter-in-law and a minor child of a pre-deceased son, if dependant wholly or partly on the deceased passenger;

(iii) a minor child of a pre-deceased daughter, if wholly dependant on the deceased passenger;

(2019) 3 SCC 410

(iv) the paternal grandparent wholly dependant on the deceased passenger.

25 [(c) "untoward incident" means--

(1) (i) the commission of a terrorist act within the meaning of subsection (1) of section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or

(ii) the making of a violent attack or the commission of robbery or dacoity; or

(iii) the indulging in rioting, shoot-out or arson, by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station; or

(2) the accidental falling of any passenger from a train carrying passengers.

12. In view of the foregoing discussion and upon perusing

the material available on record and as per the law laid down by

the Hon'ble Supreme court in Kamukayi's case, it is observed that

the respondents are failed to establish that whether the deceased is

a bona fide passenger or not, as the burden lies on the respondent

authorities and hence the railway administration is liable to pay

the adequate compensation. Therefore, considering the

submissions made by learned counsel for the appellant, this Court

is of the considered opinion that while setting aside the impugned

judgment, inclined to allow the present appeal.

13. The amount of compensation payable in respect of death

and injuries as per the schedules in Gazette of India, Ministry of

Railways dated 22.12.2016, it is fixed Part-III (2) for amputation

below shoulder within stump less than 3 ½' from tip of amputation

is at Rs. 6,40,000/- which the appellant is entitled to.

14. With regard to interest part is concerned, learned

counsel for the appellant relied on a decision of Hon'ble Supreme

Court in "Tahazhathe Purayil Sarabi and Others v. Union of

India and Another"4 wherein the Hon'ble Supreme Court held as

follows:

"22. In the instant case, the claim for compensation accrued on 13.11.98, when Kunhi Moosa, the husband of the appellant No.1, died on account of being thrown out of the moving train. The claim before the Railway Claims Tribunal, Ernakulam (O.A.No.68 of 1999), was filed immediately thereafter in 1999. There was no delay on the part of the claimants- appellants in making the claim, which was ultimately granted for the maximum amount of Rs. 4,00,000/- on 26.03.2007. Even if the appellants may not be entitled to claim interest from the date of the accident, we are of the view that the claim to interest on the awarded sum has to be allowed from the date of the application till the date of recovery, since the appellant cannot be faulted for the delay of approximately 8 years in the making of the award by the Railway Claims Tribunal. Had the Tribunal not delayed the matter for so long, the appellants would have been entitled to the beneficial interest of the amount awarded from a much earlier date and we see no

2009 ACJ 2444

reason why they should be deprived of such benefit. As we have indicated earlier, payment of interest is basically compensation for being denied the use of the money during the period which the same could have been made available to the claimants.

23. In our view, both the Claims Tribunal, as also the High Court, were wrong in not granting any interest whatsoever to the appellants, except by way of a default clause, which is contrary to the established principles relating to payment of interest on money claims.

24. We, therefore, allow the appeal and modify the order of the High Court dated 24.5.2007 affirming the order of the trial court and direct that the awarded sum will carry interest at the rate of 6 per cent simple interest per annum from the date of the application till the date of the award and, thereafter, at the rate of 9 per cent per annum till the date of actual payment of the same".

15. Following the decisions cited supra, this Court is inclined

to allow the Civil Miscellaneous Appeal. The impugned judgment

dated 06.02.2019 passed in OA/II/U/121 of 2011 by the learned

tribunal, is hereby set aside. The appellant is entitled to claim

compensation of Rs. 6,40,000/- (Rupees six lakhs and forty

thousand only) from the respondent and direct that the awarded

sum will carry interest at the rate of 6% p.a from the date of filing

claim till the date of the award/ order and, thereafter, at the rate of

9% p.a till the date of actual payment of the same.

16. With the above direction, the Civil Miscellaneous Appeal

is allowed. It is made clear that the respondent, Union of India, is

directed to pay the compensation along with interest as stated