Krishnaveni vs The Union Of India Owning
2021 Latest Caselaw 6292 Mad

                                                                        C.M.A.No.2192 of 2019

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 10.03.2021

                                                      CORAM

                              THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                              C.M.A.No.2192 of 2019

                     1.Krishnaveni

                     2.Ajithkumar

                     3.Bharathi (Minor)

                     4.Banupriay(Minor)

                     5.Panchali

                     A3 and A4 being minors
                     rep.by their mother and Natural Guardian/A1               .. Appellants
                                                         vs.

                     The Union of India owning
                     Southern Railway
                     rep.by General Manager,
                     Chennai-600 003.                                       .. Respondent

                     PRAYER : Civil Miscellaneous Appeal filed under Section 23 of the
                     Railways Claims Tribunal Act, 1989, against the order and dated
                     12.04.2017 passed in O.A.(II-U).No.080 of 2016 on the file of the Railway
                     Claims Tribunal, Chennai Bench, Chennai.


                     1/16


https://www.mhc.tn.gov.in/judis/
                                                                                 C.M.A.No.2192 of 2019




                                   For Appellant              : Mr.Selvirajesh

                                   For Respondents           :Mr.M.Vijay Anand

                                                         ORDER

The judgment and decree dated 12.04.2017 passed in O.A.(II-U).No.080

of 2016 is under challenge in the present Civil Miscellaneous Appeal.

2. The claimants are the appellants and the brief particulars of the

untoward incident are narrated in the claim petition as detailed hereunder:

“on 26.09.2012, the deceased after informing his wife Krishnaveni that he is going to Chennai for searching a job for him, he came to Dindigul Railway Station and procured unreserved ticket to travel from Dindugal to Chennai Egmore and mistakenly entrain in train No.56822 Tirunelveli-

Mayiladuthurai passenger instead of Chennai. After enter inside the train, the co-passengers informed him that the train was going to Mayiladuthurai not to Chennai. So he indent to get down from the train he came near the door ways, all of sudden due to heavy crowd and pull & push by the passengers and jerk and jolt of the train he accidentally fell down from the running train and sustained fatal injuries and died at spot. In

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2192 of 2019

the Postmortem Certificate, Assistant Surgeon Government Head Quarters Hospital, Dindigal had certified that about the cause of death “THE DECEASED WOULD APPEAR TO HAVE DIED OF SHOCK AND HAEMORRHAGE DUE TO MAJOR INJURIES”. The claimants crave leave of this Hon'ble Tribunal to read the Postmortem Certificate as part and parcel of this claim petition.

Further, the FIR, Inquest Report and the Final report clearly reveal that the death of the deceased is due to unexpected fall from the running train and hence it is an untoward Railway incident and there are no other reasons to suspect the death of the deceased.

3. The Tribunal adjudicated the issues with reference to the documents

and evidence.

4. The learned counsel appearing for the appellants mainly contended that

the deceased was a bona fide passenger. However, he had boarded in a

wrong train mistakenly and after ascertaining the fact that he has boarded in

a wrong train, he had hurriedly detrained from the moving train and fallen

down accidentally and sustained injuries and died. Therefore, the deceased

was a bona fide passenger and on account of the fact that he boarded in

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2192 of 2019

wrong train mistakenly, the untoward incident occurred. Thus, the judgment

of the Railway Tribunal is perverse and liable to be set aside. It is contended

that the Railways admitted the fact that the deceased purchased the ticket.

However, he boarded in a wrong train mistakenly.

5. The learned counsel appearing on behalf of the respondent/Railways

objected the contention by stating that the Railway Tribunal elaborately

considered the facts and circumstances as well as the provisions of the

Railways Act, the definition of bona fide passenger as well as the untoward

incident with reference to Section 123 as well as Section 2(29) of the

Railways Act. In view of the fact that all possible circumstances were also

considered by the Railway Tribunal, the Tribunal arrived at a conclusion

that the deceased was not a bona fide passenger and not holding a valid

travel ticket and therefore, the application is liable to be rejected and

accordingly, rejected.

6. Primarily, the Tribunal dealt with two issues together as they

are inter-related. As per the appellants/claimants, on 26.09.2012, the

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2192 of 2019

deceased came to Dindigul Station to go to Chennai and had mistakenly

boarded T.No.56822 Tirunelveli-Mayiladuthurai Passenger and on being

informed by other passengers that the said train was going to

Mayiladuthurai and not to Chennai, he intended to get down and had

accidentally fallen down from the said train and died at the spot. It was

further averred that the deceased had procured a valid ticket to travel from

Dindigul to Chennai Egmore, which was lost at the time of accident. The

police have conducted the Inquest at the scene of incident and recorded that

on 26.09.2012, the deceased had boarded T.No.56822 Tirunelveli-

Mayiladuthurai Passenger at P.F-2 of Dindigul Railway Station at about

12.20 hrs in the afternoon and on being informed by other passengers that

the train was going to Mayiladuthurai and not to Chennai, had tried to get

down from the train and was injured and the body was cut into two pieces

and died. The Inquest Report has also clearly recorded that except for a

medical chit regarding his wife's treatment, no other articles or cash or any

other documents were available with the deceased. Finally, the police

concluded that the incident occurred when the deceased attempted to get

down from the said train which had started from Platform 2 of Dindigul

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2192 of 2019

Station and it was a case of accidental death.

7. The Statutory Divisional Railway Manager's report also indicated that

the deceased wrongly boarded T.No.56822 going towards Mayiladuthurai

instead of a train bound for Chennai and tried to detrain from the train and

fallen down. It was further asserted that the deceased was not a bona fide

passenger at the time of incident.

8. Based on these facts as well as the report of the Divisional Railway

Manager's report, the Tribunal arrived a conclusion that there was no

dispute regarding the untoward incident occurred. However, the Railways

contended that the deceased was not a bona fide passenger as he was not

holding a valid travel ticket. In this context, the Railway Tribunal has

considered Section 123 of the Railways Act defines the “untoward incident”

and further considered Section 124(A) defines the compensation on account

of untoward incident. Combined reading of the provisions, the Tribunal

arrived at a conclusion that “a person must have purchased a valid ticket and

becomes a victim of an untoward incident”. In this context, this Court is of

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2192 of 2019

the opinion that the untoward incident was established in view of the fact

that all the reports and documents reveal that the deceased boarded in a

wrong train mistakenly and accidentally fallen down and sustained fatal

injuries and died. Thus, the untoward incident was established. However,

the travel ticket was not retrieved nor produced. Thus, the Railway Tribunal

considered various judgments of the Hon'ble High Court of Delhi as well as

the Hon'ble High Court of Karnataka and arrived a conclusion that the

deceased was not a bona fide passenger and therefore, the compensation

cannot be granted.

9. Though the Railway Tribunal relied on the judgment of the Hon'ble

High Court of Delhi as well as the Hon'ble High Court of Karnataka, the

Hon'ble Supreme Court of India elaborately considered the various

judgments of the different High Courts and laid down the principles in the

case of Union of India Vs. Rina Devi in Civil Appeal No.4945 of 2015

dated 09.05.2018. As far as the Application of Principle of Strict Liability

and the Concept of Self Inflicted Injury are concerned, the Apex Court made

a finding that there is no conflict on the applicability of the principle of

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2192 of 2019

strict liability. Sections 124 and Section 124A provide that compensation is

payable whether or not there has been wrongful act, neglect or fault on the

part of the railway administration in the case of an accident or in the case of

an ‘untoward incident’. Only exceptions are those provided under proviso to

Section 124A. Thus, if a case falls under proviso to Section 124A, then

alone, the compensation can be denied and in all other cases, the

compensation is payable. As far as proviso to Section 124 A of the Act is

concerned, it is relatable to criminal acts including self-inflicted injury. To

establish the criminal act or self-inflicted injury, an intention is to be

proved. In the absence of any intention, the criminal act cannot be attributed

against the deceased/injured. Thus, the exclusion clauses are relatable to the

criminal acts including suicide, attempt to commit suicide or self-inflicted

injury, for which, an intention is to be established. Thus, this Court is of the

opinion that mere negligence or carelessness of a passenger is insufficient to

decline compensation. In this regard, the Hon'ble Supreme Court of India

also held in clear terms in paragraph No.16.6 of the judgment which reads

as under:

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2192 of 2019

“ We are unable to uphold the above view as the concept of ‘self inflicted injury’ would require intention to inflict such injury and not mere negligence of any particular degree. Doing so would amount to invoking the principle of contributory negligence which cannot be done in the case of liability based on ‘no fault theory’. We may in this connection refer to judgment of this Court in United India Insurance Co. Ltd. versus Sunil Kumar34 laying down that plea of negligence of the victim cannot be allowed in claim based on ‘no fault theory’ under Section 163A of the Motor Vehicles Act, 1988. Accordingly, we hold that death or injury in the course of boarding or de-boarding a train will be an ‘untoward incident’ entitling a victim to the compensation and will 34 2017 (13) SCALE 652 not fall under the proviso to Section 124A merely on the plea of negligence of the victim as a contributing factor.”

10. With reference to the burden of proof in respect of the cases where

the body was found in the railway premises, the Hon'ble Apex Court

considered the definition of passenger. Thus, any person dead or injured

found on the Railway premises has to be presumed to be a bona fide

passenger so as to maintain a claim for compensation. Further, it is held that

a negative onus cannot be placed on the Railways. Onus to prove that the

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2192 of 2019

deceased or injured was a bona fide passenger can be discharged even in

absence of a ticket if relevant facts are shown that ticket was purchased but

it was lost. Therefore, the Hon'ble Supreme Court arrived at a conclusion

that in the absence of any travel ticket, the attending circumstances and the

facts are to be considered to arrive a conclusion that whether the

deceased/injured was a bonafide passenger or not and in case if a strong

inference is possible to be drawn, then the benefit should go to the victims

and in this context, the Hon'ble Apex Court also clearly stated that the cases

are to be dealt with from case to case on the basis of facts found.

11. In the present appeal, it is a case of passenger boarded in a wrong

train mistakenly. The said fact was established by the Police Enquiry

(Inquest report) as well as the Divisional Railway Manager's report. Even

in the Divisional Railway Manager's report, the concluding paragraph

reveals the facts and findings as extracted hereunder:

“In the above circumstances, it was un-doubtfully ascertained that, the deceased was not a bonafide passenger, since he was not having any train journey ticket during the time of the said incident. Further, on analysis of the all available

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2192 of 2019

evidences, it is clearly proved that the deceased had wrongly boarded the train No.56822 instead of Chennai bound train. After realising his mistakes, the deceased negligently tried to detrain from the moving train and fallen down, which resulted his body cut into two pieces and died on the spot.

In the above circumstances, it is evidentally proved that the accident was occurred due to the utmost negligence of the deceased, as he detrained from the moving train against the safety instruction of Railways to the passengers, and violated the Railway Act 1989 U/Sec 156. Also he was not a bonafide passenger at the time of the said incident.

12. The Divisional Railway Manager report also states that “on analysis

of all available evidences, it is clearly proved that the deceased had wrongly

boarded the train No.56822 instead of Chennai bound train. After realising

his mistakes, the deceased negligently tried to detrain from the moving train

and fallen down”. The said fact unambiguously portrays that the deceased

was a bona fide passenger and boarded in a wrong train mistakenly and after

realising his mistake through the other passengers, he suddenly tried to

detrain from the moving train and fallen down. Thus, this Court is of the

undoubted opinion that it is an accidental death and falling within the

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2192 of 2019

meaning of untoward incident under Section 123 of the Act, more

specifically, sub-clause 2 which contemplates that "the accidental falling of

any passenger from a train carrying passengers". Admittedly, he was a

passenger. However, he boarded in a wrong train. Soon after realising the

same, he made an attempt to detrain and fallen from the moving train. Thus,

it is an untoward incident. As far as the definition of untoward incident is

concerned, the Railway itself admitted that he was a passenger. However, he

was not holding a valid travel ticket in a train from which he had fallen

down. When the fact reveals that he boarded in a wrong train mistakenly,

naturally he may not have valid ticket. However, he was a passenger in

respect of other train which was admitted by the Railways. Moreover, the

enquiry report reveals that he had wrongly boarded in train No.56822

instead of Chennai bound train. When these facts were established through

documents and evidences, the Tribunal has adopted a straight jacket formula

which is not preferable, as far as the welfare legislations are concerned.

Even the benefit of doubt is to be extended in favour of the victim for the

purpose of grant of compensation in view of the fact that the purpose and

object of the Act is to be fulfilled.

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2192 of 2019

13. The learned counsel appearing for the respondent made a

submission that even in case the claimants could not able to produce a valid

travel ticket or a valid travel ticket was not retrieved from the deceased, the

onus lies on the claimants.

14. However, in this context, it is relevant to understand that if the

untoward incident is established and a detailed Divisional Railway Manager

enquiry report reveals that he is wrongly boarded in the train, a factual

inference is to be drawn that the deceased, after realising his mistake,

attempted to detrain from the moving train and fallen down accidentally.

Thus, an inference is to be drawn that he was a passenger and in such

circumstances, the burden of proof is to be shifted on the Railways to

establish that he was not a bona fide passenger. Mere non-availability of the

travel ticket would not be a ground to arrive a conclusion that he was not a

bona fide passenger. Beyond non-availability of travel ticket, the Railway

themselves admitted that he has mistakenly boarded in a wrong train. Thus,

this Court is not inclined to accept the Railway's Contention.

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2192 of 2019

15. This being the factum, the judgment dated 12.04.2017 passed in

O.A.(II-U).No.080 of 2016 is set aside and the Civil Miscellaneous Appeal

stands allowed. The appellants are entitled for a total compensation of

Rs.8,00,000/- (Rupees Eight Lakhs Only) along with interest at the rate of

6% per annum from the date of passing of the award and the

respondent/Railway is directed to deposit the entire award amount along

with accrued interest before the Railway Tribunal concerned within a period

of twelve weeks from the date of receipt of a copy of this order and on such

deposit, the appellants/claimants are entitled to withdraw the award amount

to be apportioned as detailed hereunder:

(i) The first appellant/wife of the deceased is entitled for a sum of

Rs.4,00,000/- (Rupees Four Lakhs Only)

(ii) The appellant Nos.2 to 4/sons and daughter of the deceased as well as

the mother of the deceased/5th appellant are entitled for a sum of

Rs.1,00,000/- (Rupees One Lakh Only) each.

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2192 of 2019

16. The major appellants are permitted to withdraw their respective

portion of the award amount by filing an appropriate application and the

payments are to be made through RTGS. As far as the minor claimants/

appellants 3 and 4 are concerned, their respective portion of the award

amount is to be deposited in any one of the Nationalized Bank in an interest

bearing deposits scheme and the same is to be renewed periodically till they

attain the age of majority. No costs.

10.03.2021

ssb Index: Yes/No Internet:Yes/No Speaking order/Non-Speaking Order

https://www.mhc.tn.gov.in/judis/ C.M.A.No.2192 of 2019

S.M.SUBRAMANIAM, J.

ssb

To

1.Railway Claims Tribunal, Chennai Bench, Chennai.

2.The Union of India owning Southern Railway rep.by General Manager, Chennai-600 003.

C.M.A.No.2192 of 2019

10.03.2021

https://www.mhc.tn.gov.in/judis/