Rajalakshmi vs The Union Of India Owning
2021 Latest Caselaw 6013 Mad

                                                                                 C.M.A.No. 4371 of 2019


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 08.03.2021

                                                          CORAM

                                   THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                               C.M.A.No. 4371 of 2019


                     1.Rajalakshmi
                     2.Mohan Raj
                     3.Loganathan                                                   ..Appellants


                                                           Vs

                     The Union of India Owning
                     Southern Railway,
                     Rep. By its General Manager,
                     Chennai – 600 003.                                             ..Respondent



                               Appeal filed under Section 23 of the Railway Claims Tribunal
                     Act, 1987 against the order made in O.A.No.33 of 2019, dated
                     16.08.2019.



                                     For Appellants   :         Mr.G.Veerapathiran

                                     For Respondent   :         Ms.T.P.Savitha


                                                      JUDGMENT

The order dated 16.08.2019 passed in O.A.No. 33 of 2019 is

under challenge in this present civil miscellaneous appeal.

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2. The claimants are the appellants and the claim petition was

filed on the ground that on 27.06.2018 at about 8.15 hrs

Thiruvallur Railway Police Inspector received a complaint from

Ms.Thilagavathi MW Gr.I 530, who was station in charge of

Tiruvallur railway station that the deceased person was aged about

45 years and working as a driver. While travelling from Coimbatore

to Avadi with the Train Ticket No. 45144328 from Coimbatore to

Avadi II Superfast train, the deceased came near the entrance

before station arrives and he fell down accidentally from the running

train and sustained injuries in body and died. The case was

registered. The investigations were conducted. The FIR itself reveals

that the deceased passenger trespassed for crossing the track and

run-over and killed at Tiruvallur Station on PF No.2 on down fast

line towards MAS. The investigations were conducted further and

based on the same, the Railway Claims Tribunal adjudicated the

issues. The claim petition was rejected on the ground that the

deceased was a trespasser and while trespassing the railway track,

run-over by the train and died. Thus, the claimants are not entitled

for compensation under the Railways Act.

3. Learned counsel appearing on behalf of the appellants

mainly contended that the deceased was a bonafide passenger and

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C.M.A.No. 4371 of 2019

the ticket was produced which was not in dispute and that he was a

bonafide passenger in the train. The Station Master of Tiruvallur

gave the statement to the police as follows:

"ehd; bjd;df,uapy;ntapy; jpUts;Sh; uapy; epiyaj;ij jiyikaplkhff; bfhz;L uapy;

                                   epiya          mjpfhhpahf           gzpg[hpe;J        tUfpnwd;/
                                   27/6/2018k;    njjp    fhiy         ehd;   mYtypy;          ,Ue;j
                                   rkak;     jpUts;Sh;          ,uapy;      epiya        eilnkil

                                   vz;/II   Down         Fast     Liney;      Rkhh;      45      taJ

kjpf;fj;jf;f Mz; egh; xUth; Vnjh xU ,uapy; tz;oapy; mog;gl;L ,we;Jfplg;gjhf ,uapy; gazpfs; ghh;j;J vdf;F jfty; ju ehd; clnd me;jjftiy vGj;JKykhf ,wg;g[ jftiy jahh; bra;J jpUts;Sh; ,/gh/ fhty;

                                   epiyaj;jpw;F           RFSF/TRLRPS           f;F       bfhLf;f
                                   mjid           bgw;W         cjtp       Ma;thsh;           vd;dplk;
                                   tprhuiz bra;a ehd; ele;jij Twpndd;/

4. The statement of the loco pilot was also recorded on

27.06.2018, which reads as under:

"The statement of the Loco Pilot was recorded by

Sunilkumar on 21.05.2019. He has stated that at

about 6.24 hours when his train was entering at

Tiruvalur Station, one passenger suddenly

trespassed and runover by my train. I have

informed the Station Master through Walkie

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Talkie, but there is no records to show the

message was received by the Station master.

The loco pilot was also not examined by the

respondent before the Tribunal. The non-

examination of the loco pilot is not proved

beyond doubt that a person while crossing the

track hit by his train."

5. Learned counsel for the appellant relying on the report of

the DRM, more specifically, the following portions are extracted

hereunder:

"The DRM report was prepared on 21.06.2019.

In the DRM Report, it is clearly mentioned that the deceased is having the ticket. But on the other hand, it is mentioned that on 27.06.2018 at about 6.14 hours, Train No. 16022 Kauvery Express, arrived at Platform No.1, Tiruvallur Station and departed at 6.16 hours and at about 6.20 hours, Train No.15228 MFP-YPR was passing through Tiruvallur Station Platform No.2 After both trains passed, at about 6.30 hours public reported that one male aged about 45 years suddenly trespassed and run over on down line. On the other hand the statement of the station officer in the new typed set will clearly reveal that some passengers body was lying in

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the back. Therefore from this it is clear that the deceased was not crossing the track. In the same DRM report, it is also found clear that the deceased is in possession of ticket from Coimbatore to Avadi. Moreover, in the DRM report, it is further mentioned that as per the statement of the loco pilot, the deceased was hit by Train No.15228, but there is no possibility for the deceased to get down at Tiruvallur in view of the fact that both the trains which were running from Coimbatore to Avadi does not having a stop at Tiruvallur and therefore the only presumption is that the deceased has fallen from the train which nobody knows from which train he has fallen.

At page 44, the conclusion of the DRM report that the deceased was run over by Train No. 15228, but on the other hand as per the records which is filed in Typed set II that the Train No.15228 is crossing Perambur at 5.34 and crossing Arakkonam at 6.31 and therefore in between the above said timings only, the said train crossed Tiruvallur. On the other hand, the evidence of Loco Pilot says that at about 6.24 his train while entering the deceased was run over, but as per the record, the train arrived Arakkonam at 6.31 hours, normally even in any high speed, it may require minimum of half an hour to reach Arakkonam from Tiruvallur i.e., at least it may be around 6.54 hours, but on the https://www.mhc.tn.gov.in/judis/

C.M.A.No. 4371 of 2019

other hand the train reaches at 6.31 hours and hence there is no possibility for run over of the deceased at Tiruvallur at 6.24 hours as per the statement of loco pilot."

6. The conclusion of the final report dated 19.08.2018 reveals

that the body was found in the Tiruvallur Railway Station platform

No.2 down fast line being knocked down by some train with hands

and legs smashed and body flowed out and death was caused on

the spot as it appeared. In the post-mortem it is indicated as crush

injury.

7. Learned counsel for the appellants reiterated that simply

believing the inquest and the final report, came to the conclusion

that the deceased trespassed and was knocked down by Train No.

15228 but there is no evidence to prove that the deceased

trespassed and knocked down. The Tribunal also erroneously

arrived a conclusion that it can only be held that the act of the

deceased was the height of carelessness, imprudence and

foolhardiness. Nothing prevented the deceased from using the foot

over bridge, be he chose to risk his life by trespassing the track.

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8. It is contended by the learned counsel for the appellants

that there is no conclusive evidence to prove that the deceased

arrived by Tiruvallur by Cheran express or by any other train. As

per DRM's report in paragraph 11, it is stated that the deceased

were travelling in Kaveri Express, on the other hand, the deceased

has purchased the ticket and boarded the train at Coimbatore

during previous night and hence there is no possibility for the

deceased to travel in Kaveri Express which is coming from Mysore.

Believing the statement without having any sufficient proof, the

Tribunal recorded the said reason in para 8 and confirmed that the

deceased had got down from the train Kaveri Express and while

crossing the track from Platform No. 1 to 2, the deceased was

knocked down by the train. The Tribunal without any application of

mind had granted that since the deceased crossed the track, it

amounts to trespass and at the time of crossing the track, he got

run-over and smashed and, therefore, the Tribunal had concluded

that it is not an untoward incident and consequently, the deceased

family is not entitled to any compensation. According to the Railway

Claims Tribunal, if a person crossing a track, it amounts to trespass

and at that time if he was hit and run over by any train, does not

constitute an untoward incident.

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9. In this context, it would be relevant to consider the

provisions of Railways Act, more specifically, Section 147 stipulates

'trespass',reads as under:

"147. Trespass and refusal to desist from trespass (1) If any person enters upon or into any part of a railway without lawful authority, or having lawfully entered upon or into such misuses such property or refuses to leave, he shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both:

Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such punishment shall not be less than a fine of five hundred rupees.

(2) Any person referred to in sub-section (1) may be removed from the railway by any railway servant or by any other person whom such railway servant may call to his aid As per the above said Section, it is very clear that if any person enters upon or into any part of the Railway without lawful authority, then only it amount to trespass. If a person is having a valid ticket or authorization from the Railway and he enters the track or crossing the track then it does not amount to trespass. In the said Section, it is very clear that ' if any person crossing the https://www.mhc.tn.gov.in/judis/

C.M.A.No. 4371 of 2019

track without any lawful authority, that means without ticket or without permission and if any untoward incident happens, then it is not an untoward incident and his family is not entitled for compensation as per Section 124-A.

Section 124-A runs as follows:

124-A Compensation on account of untoward incidents. - When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident: Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to-

(a) suicide or attempted suicide by him

(b) self-inflicted injury;

(c) his own criminal act;

(d) any act committed by him in a state of intoxication or insanity;

(e) any natural cause or disease or medical or https://www.mhc.tn.gov.in/judis/

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surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident.

Explanation - For the purpose of this section, 'passenger' includes - (i) a railway servant on duty; and

(ii) a person who has purchased a valid ticket for travelling, by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.

As per Section 124-A, the deceased family is not entitled for compensation if he commits suicide or attempted to commit suicide or any self- inflicted injury or his own criminal act or any act committed in a state of intoxication or in the nature case of death, then the family is not entitled to compensation if any death occurred during the course of travel.

Therefore in this case the crossing of the track has not explained anywhere that it amounts to trespass. The trespass has been explained only in Section 147 and if any passenger comes as per the definition of Section 147 of the Railways Act then if any incident happens, it does not amounts to an untoward incident.

On the other hand, the Tribunal has held that the crossing of track will come either under Section A or under Section B or under Section C of the proviso to Section 124-A. On the other hand, Section 124-A(a) is very clear that if anybody https://www.mhc.tn.gov.in/judis/

C.M.A.No. 4371 of 2019

commits suicide or attempted to commit suicide, then it is an offence which will clearly comes under the category of IPC. In order to commit suicide or attempted to commit suicide, there will be a mensrea then only it will come under the aforesaid provision. When there is no mensrea (intention), the said proviso will not applicable. Likewise, self-inflicted injury also will come only if there is an intention to commit an offence for himself. The third provision also the own criminal acts also will come under the aforesaid intention. When there is no intention at all, if any act has been done by the deceased, then it is to be construed only as an untoward incident and not otherwise. Moreover, as per the provisions of the Railways Act also, if a trespasser is entering into the any part of railway without any authority, then it amounts to trespass.

11. It is also further stated by the Tribunal stating that the deceased can cross the track only through the over bridge and he is not entitled to cross the track to reach the other side of the platform. On the other hand, it is also accepted that the over bridge will be a more height and the persons if more than 60 years or a heart patient, it is not at all possible for them to climb the overbridge. Moreover all the railway employees also to reach the other platform only by crossing the track and not by climbing the over bridge. It is further submitted that for https://www.mhc.tn.gov.in/judis/

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crossing the track to reach the other platform is only with an intention to catch the train in the other platform and not come under the provision to Section 124A. The crossing of track for such person, there is no mensrea either to commit suicide or to get self-inflicted injury or his own criminal act. The intention of the said person is only to reach the other platform in order to catch the train which is coming in that platform. There is one more provision of this Act is Section

156. Section 156 of the Railways Act runs as follows:

156. Travelling on roof, step or engine of a train.

- If any passenger or any other person, after being warned by a railway servant to desist, persists in travelling on the roof, step or footboard of any carriage or on an engine, or in any other part of a train not intended for the use of passengers, he shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both and may be removed from the railway by any railway servant.

As per the aforesaid section, if anybody travelling on the roof of the train, or steps or engine of the train, then his action is of own criminal act. The Section is very clear if anybody is doing such an act, then he must be warned by the Railway servant to desist, persist in travelling https://www.mhc.tn.gov.in/judis/

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on the roof, steps or footboard of any carriage or on an engine, or in any other part of a train not intended for the use of passengers. Therefore here also it is very clear the person who doing such an act, first he should be warned and inspite of the said warning, if he commits the same mistake, then it will be come under the proviso to Section 124-A of own criminal Act. Therefore mere crossing of the track in view of his age and not noticing the train which is coming on the opposite side is only a negligence and not come under any provisions of Section 124-A.

It is also settled law that negligence is not a ground to deny the compensation for any untoward incident is happened. If anybody crossing the track with intention to commit suicide and if he was hit and run over by the train, then that incident is not an untoward incident.

12. There is no evidence to prove that the deceased is having an intention to commit suicide. On the other hand, the findings of the inquest report, final report and also findings of the Tribunal will clearly reveal that the deceased while crossing the track was hit by any of the train.

13. According to the appellant that the deceased was travelling from Coimbatore to Chennai either by Madras Mail or by Cheran Express and he has https://www.mhc.tn.gov.in/judis/

C.M.A.No. 4371 of 2019

been fallen from the said train and was run over by the same train or by any other train.

14. Even for the purpose of arguments sake, if it is accepted that the deceased while crossing the track was run over and it is also further explained in the findings of the Tribunal that in order to reach from Platform No 1 to 2, the deceased was knocked down. Therefore even this Act if it is to be true for the purpose of an argument sake, even then it will come under proviso to Section124 A, but it is only a negligence on the part of the deceased. In view of the settled law by the Apex Court that negligence is not a ground to deny the compensation if any untoward incident is happen and therefore consequently, the appellants are entitled to compensation in view of the fact that it is an accepted fact that the deceased is a bonafide passenger. The ticket was found from the packet of the deceased and was mentioned in all the records and also Tribunal has also found that the deceased is a bonafide passenger. Moreover the age of the deceased is 65.

15. There is no evidence to the effect that the death of the deceased has come under the exception of Section 124-A and moreover as per the appellants side evidence, it is crystal clear that the deceased boarded the train at Coimbatore and it may be either in Cheran Express or Chennai Mail.

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                                                                                 C.M.A.No. 4371 of 2019


                                        Therefore   the    appellants     have    proved

beyond doubt the deceased while travelling in any one of the train that in Cheran Express or Chennai mail and accidentally fallen down from the said train and it is nothing but an untoward incident and for the same the appellants are entitled to the compensation."

10. The distinction to be considered is that Section 147 deals

with trespass, which is a punishable offence. The punishment

prescribed is imprisonment for a term which may extend to six

months or with fine which may extend to Rs.1,000/- or with both.

Thus, Section 147 is a penal provision.

11. Section 124A provides compensation in the event of

passengers sustaining injury or in case of death due to 'Untoward

incident'. However, to convict a person under Section 147 of the

Act, intention / mens rea is to be established. Thus, unintentional

trespass through Railway track by mistake committed by a

passenger, would not fall under the exclusion clause as

contemplated under proviso to Section 124A and in such cases,

compensation is to be awarded. In the present case, even the

trespass has not been proved beyond any doubt, despite the fact

that the respondent / Railways claims that it is a case of trespass.

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Presuming that it is a case of trespass, then also, the Railways is

bound to establish that the trespass has been committed with an

intention and falling under the Criminal Act as contemplated under

the Proviso clause to Section 124A of the Act.

12. Undoubtedly, Proviso to Section 124A, the exclusion

clauses are relatable to criminal acts. Five clauses are stipulated,

but the trespass under Section 147 has not been made as an

exclusion clause under the proviso to Section 124A of the Act, so as

to disentitle the victim from availing compensation. In the absence

of any such specific exclusion under the Act, the compensation is

liable to be settled under Section 124-A of the Act. Compensation

being a welfare measure and to save the family on account of the

sudden death of a breadwinner of the family or injuries, the benefit

cannot be denied in a routine manner by interpreting the welfare

legislation negatively. Positive and pragmatic approach is certainly

required as such award of compensation is an integral part of the

concept of social justice enunciated under the preamble of the

Constitution of India.

13. Admittedly, the deceased in the present case was a

Bonafide passenger and the Railways claim that it is a case of

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trespass. But the Railways could not able to prove the same with

irretrievable evidence. Contrarily, the investigation reports suggest

that it is a case of falling down from a running train. The Railways

could not even able to establish that the untoward incident

occurred, while crossing the Railway Track in a negligent manner

and with an intention. In both such cases, untoward incident was

established and the deceased was admittedly a bonafide passenger,

holding a valid travel ticket. Thus, in the absence of any criminal act

and the mens rea is established, the welfare scheme of

compensation cannot be denied to the victims.

14. Constitutional Courts cannot brush aside the prevailing

situations in our great Nation. We are aware of the fact that

passages are provided in between one Platform to another platform

and through such passages, Railway employees and passengers

carrying goods, Senior citizens and wheel chair passengers and

other passengers are allowed to cross for the purpose of reaching

other platforms by the Railway officials as well as the RPF Police

officials. Crossing through Railway tracks in the end of platforms are

not prevented nor closed by the Railway authorities by putting gates

or barry gates, if at all, it is meant for restricted usage. Even RPF /

Police are not deployed to prevent the passengers from crossing the

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Railway track in order to reach the other platforms. When such

crossings are freely permitted by the Railway authorities or RPF

even in City Railway Stations, then there is no reason whatsoever to

blame the passengers for the purpose of declining the benefit of

compensation under the provisions of the Railway Act. The Railway

authorities may take a defense with over bridges are made available

for the usage of passengers. For instance, in Chennai Egmore

Railway Station, over bridge is very high and Senior citizens could

not be in a position to climb the steps and such practical difficulties

are also to be considered by the Railway authorities, more

specifically, with reference to the current day developments and

technological advancements.

15. In the present case, the deceased was aged about 64

years at the time of untoward incident. The passengers are

witnessing that ill-health, senior citizen and wheel chaired people

are freely permitted to cross the Railway track in the end of

platform for the purpose of reaching the other platforms. This

exactly is the reality and the truth prevailing. Such being the

responsibility of the law enforcing officials, on what basis a poor

passenger can be blamed for crossing the railway track

unintentionally and by mistake in order to reach the other

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platforms. Thus, the authorities and the Railway Police are

completely responsible and accountable for not effectively

preventing such illegal activities in Railway Stations and in Railway

premises. The complex nature of scenarios and situations prevailing

in Railway Stations across the country cannot be neglected by the

Courts and the Courts cannot shut its eyes with reference to the

truth as well as the circumstances. The Railway authorities and the

Railway Police force, after allowing the passengers freely to cross

Railway tracks to reach the other platforms and in case of any

untoward incident, blaming the passengers, can never be accepted

by the Courts and all those officials including the Police officials

must be held accountable and the Railways are bound to institute

action against those officials, who have failed to perform their duties

with utmost devotion. Further, negligence, lapses, dereliction of

duty on the part of the officials are also to be looked into for the

purpose of prosecution.

16. The discussions made in the aforementioned paragraphs,

would throw light that the Railway Claims Tribunal has not

considered the issues in Constitutional perspectives and with

reference to the truth prevailing in Railway premises. In such

circumstances, Courts are bound to adopt the Doctrine of Liberal

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interpretation, so as to ensure that the concept of social justice

prevail and the livelihood of the dependants, who lost their near and

dear and the breadwinner are saved. Accordingly, the order dated

16.08.2019 passed in O.A.No.33 of 2019 is set aside and the civil

miscellaneous appeal in C.M.A.No.4371 of 2019 stands allowed. No

costs.

17. The appellants are entitled for a total compensation 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 respondent/Railways is directed to deposit the award amount

before the Railway Tribunal concerned with accrued interest within a

period of twelve weeks from the date of receipt of a copy of this

judgment. The first appellant is entitled to withdraw Rs.4 lakh and

the appellants 2 and 3 are entitled to withdraw Rs.2 lakh each. The

appellants are permitted to withdraw the award amount as per the

apportionment stated above by filing an appropriate application

before the Railway Claims Tribunal and the payments are to be

made through RTGS.

08.03.2021

Index: Yes/No ssm/kak

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C.M.A.No. 4371 of 2019

To The Presiding Officer, Railway Claims Tribunal, Chennai.

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C.M.A.No. 4371 of 2019

S.M.SUBRAMANIAM, J.

(ssm)

C.M.A.No. 4371 of 2019

08.03.2021

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