Madras High Court

Smt.S.Chandra vs Union Of India on 17 February, 2021

                                                                              C.M.A.No.505 of 2015

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 17.02.2021

                                                      CORAM

                                   THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM

                                                C.M.A.No.505 of 2015

                     1.Smt.S.Chandra
                     2.S.Guruprasad
                     3.S.Madhavan
                     4.S.Prakash
                     (Appellants 2 to 4 rep. by mother & natural guardian
                     1st appellant)
                     5.G.Ganesan
                     6.Smt.Sethu Ammal                                         ... Appellants
                                                        Vs.
                     Union of India,
                     Owning Southern Railway,
                     Rep by General Manager,
                     Chennai 600 003.                                         ... Respondent

                     Prayer : Civil Miscellaneous Appeal filed under Section 23 of Railway
                     Claims Tribunal Act, 1987, against the order dated 16.12.2014 passed
                     by the Railway Claims Tribunal, Chennai Bench, in O.A.(II-U) No.45 of
                     2014.
                                           For Appellants    : Mr.T.Raja Mohan
                                           For Respondent     : Ms.A.Shri Jayanthy


                                                  JUDGMENT

The order dated 16.12.2014 passed in O.A.(II-U) No.45 of 2014,

is under challenge in the present civil miscellaneous appeal. https://www.mhc.tn.gov.in/judis/

C.M.A.No.505 of 2015

2. The narration of facts by the appellants are as under:

The deceased was a resident of Puliyankudi Village in

Ramanathapuram District of Tamil Nadu State. He was a goat shepard.

On 29.05.2013 the deceased informed his wife that he was going to

paramakudi to visit his parents and left the house. The applicants came

to know from the Virudhachalam Railway Police that the deceased on

29.05.2013 in the night by purchasing II class ticket for the travel from

Virudhachalam to Paramakudi, while traveling by sitting near the door

of the general compartment of Chennai-Rameswaram Sethu Express

Train, between Virudhachalam and Thalanallur Railway Station, as he

bent forward for vomiting, due to heavy rush, speed and jolt of the train,

accidentally fell down from the running train, run over by the wheels,

head crushed, brain squeezed off, left hand below writs cut and crushed,

right leg amputated at thigh level, left leg cut at hip level and grievous

crush injuries all over the body with heavy discharge of blood, died on

the spot. It was an untoward incident.

3. The respondent Railway contested the application mainly on

the ground that the accident occurred due to the negligence of the https://www.mhc.tn.gov.in/judis/

C.M.A.No.505 of 2015

deceased and therefore, the Railway is not liable to pay compensation.

Further, it is contended that the deceased was not possessing a valid

travel ticket and thus, not a bonafide passenger. The Railway Tribunal

accepted the grounds raised on behalf of the Railway, more specifically,

negligence and dismissed the application.

4. The learned counsel for the appellants reiterated that in the

absence of retrieval of ticket, the factum regarding the accident is to be

established and once the accident is established, then the burden to be

shifted on the Railway to establish that the passenger was not a bonafide

passenger. After establishing the accident in the railway premises, even

as per the records available with the Railway, burden cannot be laid on

the claimants and it is to be shifted to the Railway to establish that the

deceased was not a bonafide passenger.

5. As far as the negligence is concerned, mere negligence is

insufficient to hold that it is a self inflicted injury. Mere negligence

cannot be considered by the Tribunal for the purpose of declining

compensation to the victim. The act being the welfare legislation, only

in the event of false claims, the application is to be rejected. Once the https://www.mhc.tn.gov.in/judis/

C.M.A.No.505 of 2015

factum regarding the accident is established beyond any pale of doubt

and such accident is not falling within the clauses excluded under

Section 124(A), then the Tribunal has to consider for grant of

compensation.

6. This being the principles, let us now consider the final report

which reveals that after investigation, the police authorities found the

accident occurred. The deceased Shanmugam on 30.05.2013 prior to

12.00 noon, while travelling by sitting near the door of the general

compartment of Train No.16713, Chennai to Rameswaram Sethu

Express. as he bent forward for vomiting, lost his balance and

accidentally fell down, injured by the train, head crushed, skull broke

open, brain squeezed off, grievously injured with heavy discharge of

blood and died at the place of occurrence.

7. A question arises, such a negligence can be attributed against

the victim. Undoubtedly, the passengers are bound to travel in train with

all caution and equally, the responsibility lies on the Railway authorities

also. The Railway authorities are bound to ensure that the safety and

security of the passengers are protected adequately. The prevailing https://www.mhc.tn.gov.in/judis/

C.M.A.No.505 of 2015

situation in our great nation on account of huge population, the Railway

authorities are also incapable of providing complete security to the

passengers and in most of the unreserved coaches, the doors are always

remain open, even in express trains, tickets are issued without any

restrictions to travel in unreserved compartments. Thus, over and above

the seating capacity in unreserved coaches, the passengers are tempted

to travel and the Railway Protection Force as well as the competent

authorities, who are all incharge, are not even taking steps to regulate

the crowd in the unreserved coaches.

8. If the seating capacity of the coach is 72, more than 300

passengers are travelling and therefore, the negligence on the part of the

Railway authorities also to be construed as contributory. Thus, the

contention of the Railways cannot be taken into consideration in such

nature of cases so as to decline the compensation to the victims. The

Railway is bound to formulate the scheme to provide more protection

and safety to the passengers, who are all travelling. Most of the

untoward incidents are happening undoubtedly at the negligence and

carelessness of the passengers and equally, the Railways are also

contributing for such negligence and therefore, the right of https://www.mhc.tn.gov.in/judis/

C.M.A.No.505 of 2015

compensation cannot be denied merely on the ground of negligence by

the passengers by not considering the contributing negligence by the

Railway authorities.

9. The Indian Railway Employees / Officials are getting very

decent salary from the taxpayer's money and comparatively far higher

than that of the employees working with private players. Unfortunately,

the expected level of performance and responsibilities are not made

available to the public at large. They are lacking in accountability. The

higher officials undoubtedly are not having effective administrative

control over these employees. At the outset, the accountability and

responsibility are lacking at various levels. This exactly is the reason for

heavy financial loss in Indian Railways, which is one of the largest

public transport system in the entire world. The huge financial loss year

after year made the Government of India to think about the privatization

of these public sectors. This Court is of the firm opinion that

Constitutional Governments are for Governance and not for running

commercial establishments for profit making. Therefore, all such

establishments, which all are facing continuous financial loss, affecting

the public interest is to be re-visited. When the Private Transport https://www.mhc.tn.gov.in/judis/

C.M.A.No.505 of 2015

Players are making profit, the Government is not successful in running

these commercial establishments profitably. Thus, the policy makers are

looking after an alternate option for privatization in order to save the

public interest and to minimise the heavy financial loss to the

Government.

10. As far as the case on hand is concerned, beyond the final

report, even the DRM report dated 02.04.2014 reveals that the accident

occurred due to the fact that the deceased was sitting on the doorways of

the train, bent forward to vomit and slipped and fallen down. Therefore,

the vomiting and fallen down is certainly an accidental one and the same

cannot be construed as a total negligence so as to deny the benefit of

compensation to the claimants.

11. A pragmatic approach is required in respect of the welfare

legislation. When the factum regarding the accident was established and

the Railway authorities also permitting the passengers to travel by sitting

or standing nearby the door and large number of tickets are issued

without any limit, as far as the unreserved coaches and in express trains

are concerned, the Railway authorities cannot raise a ground that on https://www.mhc.tn.gov.in/judis/

C.M.A.No.505 of 2015

account of such negligence, the accident occurred. Even the possible

probabilities are to be considered in such nature of cases. Our Great

Nation with huge population and on account of illiteracy and ignorance,

people even for joy, stand nearby the door in train coaches. The doors

are not closed by the competent authorities of the Railway and automatic

doors are to be provided, which is to be operated by the authorities

whenever the train start from the platform. These all are the safety

measures which all are to be adopted and in the event of not providing

such safety measures, the Railways cannot blame the passengers as they

have also contributed by issuing large number of tickets to the

passengers without ascertaining the actual capacity of the unreserved

coaches in the trains.

12. This being the factum established, the order dated 16.12.2014

passed in O.A.(II-U) No.45 of 2014 is set aside and C.M.A.No.505 of

2015 is allowed. No costs.

13. The appellants are entitled for total compensation of

Rs.8,00,000/- along with interest at the rate of 6% per annum from the

date of passing of the award . The said award is to be apportioned as https://www.mhc.tn.gov.in/judis/

C.M.A.No.505 of 2015

detailed hereunder:

“The appellant/wife is entitled for a sum of

Rs.3,00,000/- and all other five appellants are entitled

for Rs.1,00,000/- each. The respondent/Railway is

directed to deposit the award amount with accrued

interest before the Tribunal concerned within a period

of 12 weeks from the date of receipt of a copy of this

order and on such deposit, the appellants are permitted

to withdraw their respective portions of the amount by

filing an appropriate application and payments are to be

made through RTGS.”

17.02.2021 Index: Yes/No Internet:Yes/No Speaking order/Non-Speaking Order gsk

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