Madras High Court
Smt.J.Bhuvaneshwari vs The Union Of India Owning on 22 February, 2021
C.M.A.No.393 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.02.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No.393 of 2016
1.Smt.J.Bhuvaneshwari
2.J.Rishikumar
3.J.Karithick
(A-2 & A-3 being minors rep.by mother &
Natural Guardian A-1)
4.P.Mohankumar
5.Smt.M.Kalamani
(wife & two minor sons & parents of deceased) ..Appellants
Vs.
The Union of India owning
Southern Railways,
Rep.by its General Manager,
Chennai – 600 003. ..Respondent
Prayer : Civil Miscellaneous Appeal filed under Section 23 of the
Railway Claims Tribunal, against the order dated 08.10.2015 passed by
the Railway Claims Tribunal, Chennai Bench in OA(II-U) 365/2014.
For Appellants : Mr.T.Raja Mohan
For Respondent : Mr.C.V.Ramachandramurthy
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C.M.A.No.393 of 2016
JUDGMENT
The order dated 08.10.2015 passed in OA(II-U) 365/2014 is
under challenge in the present Civil Miscellaneous Appeal.
2. The claimants are the appellants and the application seeking
compensation was filed under Section 16 of the Railways Act, based on
the facts narrated in the application which reads as under:
“The deceased was a resident of Chennai. That
on 10.12.2013, the deceased left his house in order to
go to Gudur on a personal work. The applicants came to
know from the Gudur Railway Police that the deceased,
while travelling in any one of the train proceeding
towards Gudur, prior to 09.00 hrs on 10.12.2013, when
the train was running between Arambakkam and Tada
Railway Stations, due to over crowd, speed, jerk and
jolt of the train, accidentally fell down from the running
train, suffered (1) grievous head injury resulting to
skull broken, 2) nose broken with bleeding injury, 3) left
shoulder fractured and twisted, 4) left thigh fractured
5) right leg fractured near knee and died on the spot. It
was an untoward incident. The second class ticket
purchased by the deceased for his travel from Chennai
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C.M.A.No.393 of 2016
Central to Gudur was said to have been lost at the time
accident and the saem could not be traced by the
Railway authorities.”
3. The First Information Report reveals that the accident occurred
and the Inquest Report also endorses the same. The Final Report filed
after investigation also states that the deceased sustained fatal injuries
and died due to the untoward incident occurred by falling down from a
running train. It is pertinent to note that the Divisional Railway
Manager's [DRM] Report dated 24.03.2015 reveals that Sri.Nagaraju,
gang man/TADA was enquired and his statement was recorded in which
he stated that on 10.12.2013, while he was nominated for 07.30 hrs to
17.00 hrs duty as acting key man between KM 64/16-67/14 between
TAD/AKM at about 09.00 hurs, he noticed a male dead body aged about
45 yrs lying at KM 66/30-32 at the west side of down-line. The body
was found with head and legs facing to south and north respectively with
heavy bleeding injuries. The deceased seemed to have been fallen down
from some running train. He had not seen any traveling ticket with the
deceased.
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C.M.A.No.393 of 2016
4. The Tribunal adjudicated the issues with reference to the
documents. Section 123 Sub Clause 2 of Railways Act states that “the
accidental falling of any passenger from a train carrying passengers” is
to be construed as 'Untoward incident'. Therefore, even in case of
negligence on the part of the passenger, the same cannot be a ground to
decline grant of compensation. Only if it is a criminal negligence, which
is to be established, the application can be rejected and in all other cases,
a mere negligence or carelessness cannot be a ground to deny
compensation to the victim.
5. In the present case, the Divisional Railway Managers' [DRM]
Report reveals that the deceased seemed to have falling down from the
running train.
6. Probabiliites regarding the accident was established and
therefore, the burden of proof lies on the respondent/Railways to prove
that the deceased was not a bonafide passenger. The initial onus lies on
the appellants/claimants were discharged and the burden of proof leis on
the Railways were not discharged by not proving the fact that the
deceased was not a bonafide passenger.
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C.M.A.No.393 of 2016
7. The Railway Tribunal relied on the fact that the deceased was
not possessing a valid ticket nor any such travel ticket was retrieved in
the place of occurrence. Mere non-availability of a travel ticket is not a
ground to reject the application. If the factum regarding the accident was
established, and the DRM Report also reveals that the death occurred on
account of falling down from a running train, then the burden of proof
must be shifted on the Railways to establish that the deceased was not a
bonafide passenger. It is possible that the tickets may not be available on
account of the accident and in this context, it is a death and therefore,
one cannot expect the claimants after a lapse of few days, would submit
the travel ticket. This exactly the reason why the Apex Court also ruled
that mere non-availability of travelling ticket is not a ground to decline
compensation. Only if the facts and circumstances reveals that the
untoward incident is not established, then alone the compensation may
be denied and in all other circumstances, non-availability of ticket is not
a ground unless the Railways prove that the deceased was not a bonafide
passenger. Thus, the Tribunal has not appreciated the principles laid
down in Union of India Vs. Rina Devi in Civil Appeal No.4945 of
2015 dated 09.05.2018 by the Apex Court and contrarily, relied on the
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C.M.A.No.393 of 2016
judgment of the Delhi High Court which was over ruled by the Hon’ble
Supreme Court of India.
8. This being the facts and circumstances, the order dated
08.10.2015 passed in OA(II-U) 365/2014 is set aside and the Civil
miscellaneous Appeal in C.M.A.No.393 of 2016 stands allowed. The
appellants are entitled for a total sum of Rs.8,00,000/-(Rupees Eight
Lakhs only) along with the interest at the rate of 6% per annum from the
date of passing of the award. The compensation is to be apportioned as
under:
(i) The 1st appellant/wife is entitled for a sum of Rs.3,00,000/-
(Rupees Three Lakhs only).
(ii) The appellants 2 and 3, who are minors, are entitled for a sum
of Rs.1,50,000/- each(Rupees One Lakh Fifty Thousand only Each).
(iii) The appellants 4 and 5 / parents of the deceased are entitled
for a sum of Rs.1,00,000/- each (Rupees One Lakh only each)
9. The respondent / Railways is directed to deposit the
compensation amount of Rs.8,00,000/-(Rupees Eight Lakhs only) along
with the accrued interest at the rate of 6% per annum before the Railway
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C.M.A.No.393 of 2016
Tribunal concerned within a period of 12 weeks from the date of receipt
of a copy of this judgment and on such deposit, the major claimants are
permitted to withdraw their respective portion of the award amount with
accrued interest by filing an appropriate application before the Tribunal
and the payments are to be made through RTGS. As far as the minors
share of compensation is concerned, the same is to be deposited in any
one of the Nationalized Bank in an interest bearing deposit scheme and
the same is to be renewed periodically till the minors attained the age of
majority. No costs.
22.02.2021
kak
Index: Yes/No
Internet:Yes/Non-Speaking order
To
1. The Railway Claims Tribunal,
Chennai Bench.
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C.M.A.No.393 of 2016
S.M.SUBRAMANIAM, J.
kak
C.M.A.No.393 of 2016
22.02.2021
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