Smt. Naseema vs Union Of India
2021 Latest Caselaw 23854 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE MR. JUSTICE P.SOMARAJAN
  SATURDAY, THE 4TH DAY OF DECEMBER 2021 / 13TH AGRAHAYANA, 1943
                            MFA NO. 82 OF 2018
AGAINST THE ORDER/JUDGMENT IN OA(IIU/ERS/15/2017 OF RAILWAY CLAIMS
                      TRIBUNAL, ERNAKULAM BENCH
APPELLANTS/PETITIONERS:

    1       SMT. NASEEMA, AGED 36 YEARS,W/O.LATE MOHAMMED
            NAIZAM,KUNNUMPURATH THEKKATHIL,VILAKUDY
            VILLAGE,KUNNICODE,KOLLAM-691508.
    2       ALFATHIMATHU ZAHARBATH,
            AGED 17 YEARS,D/O.LATE MOHAMMED NAIZAM,KUNNUMPURATHU
            THEKKATHIL,VILAKUDY VILLAGE,KUNNICODE,
            KOLLAM-691508,MINOR,REPRESENTED BY HER MOTHER AND
            NATURAL GUARDIAN,SMT.NASEEMA,AGED 36 YEARS,W/O.LATE
            MOHAMMED NAIZAM.
    3       ALAMARIYAM UL AAZIYA,
            AGED 14 YEARS,D/O.LATE MOHAMMED NAIZAM,KUNNUMPURATHU
            THEKKATHIL,VILAKUDY VILLAGE,KUNNICODE,
            KOLLAM-691508,MINOR,REPRESENTED BY HER MOTHER AND
            NATURAL GUARDIAN,SMT.NASEEMA,AGED 36 YEARS,W/O.LATE
            MOHAMMED NAIZAM.
    4       MUHAMMED IBNU MUHAMMED,
            AGED 9 YEARS,S/O.LATE MOHAMMED NAIZAM,KUNNUMPURATHU
            THEKKATHIL,VILAKUDY VILLAGE,KUNNICODE,
            KOLLAM-691508,MINOR,REPRESENTED BY HER MOTHER AND
            NATURAL GUARDIAN,SMT.NASEEMA,AGED 36 YEARS,
            W/O.LATE MOHAMMED NAIZAM.

            BY ADVS.
            SRI.V.JAYAPRADEEP
            SMT.O.A.NURIYA
RESPONDENTS/RESPONDENTS:

    1       UNION OF INDIA
            REP.BY GENERAL MANAGER,SOUTHERN RAILWAY,CHENNAI-3.
    2       UMMUHA BEEVI,
            AGED 77 YEARS,M/O.LATE MOHAMMED NAIZAM,KUNNUMPURATHU
            THEKKATHIL,VILAKUDY VILLAGE,KUNNICODE,KOLLAM-691508.
            BY ADV SRI.P.K.SAJEEV, SC, RAILWAYS -R1


     THIS   MISC.   FIRST   APPEAL   HAVING   COME   UP   FOR   HEARING   ON
04.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MFA NO. 82 OF 2018                       2

                                   JUDGMENT

A claim petition was dismissed on the sole ground that the season ticket

held by the deceased was not produced. But going by the records produced by the

Railway, it is clear that the victim was a bonafide passenger. The season ticket

was subsequently produced.

2. In order to prove bonafide passenger, it is not at all necessary to produce

the railway ticket or the season ticket invariably in all cases. The said

requirement has to be tested with the attending circumstances under which the

accident was happened and the nature of injuries sustained by the victim. If it is a

case of death, there may be every possibility of missing the ticket during the

course of alleged incident.

3. In Raj Kumari v. Union of India (1992 SCC Online MP 96), it was

observed that since travelling without a ticket is punishable, the burden is on the

Railway to prove that the passenger was not a bonafide passenger. Further, the

Railway administration will have special knowledge whether ticket was issued or

not. The High Court of Delhi in Gurcharan Singh v. Union of India (2014 SCC

OnLine Del 101) held that initial onus to prove death or injury to a bonafide

passenger is always on the claimant. However, such onus can shift on the

Railways if an affidavit of relevant facts is filed by the claimant. The Apex Court

in Union of India v. Rina Devi [(2019) 3 SCC 572] concluded and laid down the

legal position that "mere presence of a body on the railway premises will not be

conclusive to hold that injured or deceased was a bonafide 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 bonafide

passenger. Initial burden will be on the claimant which 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."

4. The claim Tribunal found that the cause of accident is not the result of

any self inflicted injury or any negligence contributed by the deceased so as to

bring the matter within the exceptions under Section 124 A of the Railways Act,

1989. Even going by the evidence on record, there is nothing to suggest

involvement of any exception as enumerated under Section 124A of the Act.

Admittedly, the victim died in the alleged incident. Hence, consolidated payment

of Rs.8,00,000/- (Rupees Eight Lakhs only) can be awarded as compensation to

the appellants and it will carry interest @ 6% per annum from the date of petition

till the date of payment. It shall be paid within a period of three months from

today.

The appeal will stand allowed accordingly.

Sd/-

                                                        P.SOMARAJAN
msp                                                       JUDGE





                                   APPENDIX


PETITIONER'S ANNEXURES :

ANNEXURE A1            : COPY OF THE REPORT DATED 09.02.18 OF THE DIVISIONAL

SECURITY COMMISSIONER, RAILWAY PROTECTION FORCE

//TRUE COPY//

P.A. TO JUDGE