Mrs.Saraswathi vs The Union Of India
2021 Latest Caselaw 6366 Mad

                                                                               C.M.A.No.2132 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.2132 of 2019

                     1.Mrs.Saraswathi
                     2.Mr.P.Manjunatha
                     3.Shilpa
                     4.P.Sujatha
                     5.P.Janaki                                                  ..Appellants

                                                           Vs.

                     The Union of India,
                     Owning Southern Central Railway,
                     Rep.by its General Manager,
                     Chennai.                                                   ..Respondent

                     Prayer : Civil Miscellaneous Appeal filed under Section 23 of Railway
                     Claims Tribunal Act, against the order dated 22.02.2018 passed in
                     O.A.(II U).No.84/2017 on the file of the Railway Claims Tribunal,
                     Chennai Bench, Chennai.


                                      For Appellants   :         M/s.Selvirajesh
                                      For Respondent   :         Mr.M.Vijay Anand


                                                  JUDGMENT

The judgment dated 22.02.2018 passed in O.A.(II U).No.84/2017

is under challenge in the present Civil Miscellaneous Appeal. https://www.mhc.tn.gov.in/judis/

C.M.A.No.2132 of 2019

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

untoward incident are narrated in the claim petition as under:

“The deceased was a devoutee often he used go for pilgrimage to various holy places and returned within a week. Likewise on 14.05.2016, he left the home for pilgrimage but after a lapse of weeks he was not returned.

So his family members searched everywhere and at last they lodged a complaint in Bangalore Mahadevapura Police Station on 20.05.2016 as Man Missing in these circumstance on 27.05.2016, the deceased called his wife over phone and informed that he is in Rameswaram-Tamil Nadu while he was speaking with her wife phone was disconnected and after he could not able to connect. On 29.05.2016 deceased intend to return his native place he procured a unreserved ticket at Rameswaram Railway Station for his travel from Rameswaram to Chennai Egmore and travelled in Train No.16102 while the train came in between Ramanathapuram – Sattirakudi Railway Stations at KM 613-800/900 due to over crowd, Jerk and Jolt of the train, he accidentally fell down from the running train and sustained head injuries. He was brought to Government Hospital Ramanathapuram through 108 Ambulance but without any improvement of medical treatment he died.” https://www.mhc.tn.gov.in/judis/

C.M.A.No.2132 of 2019

3. The Tribunal adjudicated the issues with reference to the

documents and the evidences and the Tribunal rejected the Claim

Petition mainly on the ground that the deceased was not possessing a

valid travel ticket. Therefore, he was not a bonafide passenger and thus,

the claimants are not entitled for compensation under the Railways Act.

The findings of the Tribunal reveals that the statutory definition of

passenger under Section 2(29) of the Railways Act refers to a person

travelling with a valid pass or ticket and in the present case, the

deceased was not possessing a valid travel ticket and therefore, the

claimants are not entitled for compensation.

4. The Tribunal formed an opinion that it is not a case, where the

deceased had happy parting with his family members in the regular

course of religious pilgrimage. It is a case, where the deceased would

appear to have gone without informing any relatives or members of the

family, where he had gone. When the Railway Tribunal proceeded on

the basis that the deceased has not informed about the travel to the

family members, an inference is to be drawn that it might be a case of

'Suicide'. Mere presumption in this regard cannot be a ground to deny

compensation to the victim. One may have different perceptions https://www.mhc.tn.gov.in/judis/

C.M.A.No.2132 of 2019

regarding travel. One may have different ideas about travel and even a

person travels with a desperation, may change his mind and return back

to home. Unless it is established that it is a case of 'Suicide', inference

cannot be drawn, making the claimants dis-entitled from compensation

based on such presumptive findings. Thus, all cases, where the untoward

incident is established and the passenger traveled in a train, one has to

presume that he is a passenger. In the event of non-retrieval of valid

travel ticket or otherwise, the burden of proof is shifted on the railways

to establish that the deceased / injured was not at all a passenger nor

travelled in a train.

5. In the event of establishing that he was not a passenger and not

travelled in any train, the Courts are expected to consider for grant of

compensation. Rejection of Claim Petition based on certain

circumstantial presumption is not preferable as there is possibility of

miscalculation regarding such presumptions or ideas. Therefore, the

finding arrived by the Tribunal based on the presumption regarding the

manner, in which, the deceased undertook travel to Ramanathapuram

from Rameshwaram cannot be uphold by this Court. Such presumptive

inferences may not be preferable as far as the welfare legislations are https://www.mhc.tn.gov.in/judis/

C.M.A.No.2132 of 2019

concerned. Courts are bound to adopt a pragmatic approach in respect of

grant of compensation to the poor victims and the principles of social

justice is also to be borne in mind as the family members lose the life of

their near and dear and more so, a breadwinner of the family. All these

aspects are to be considered and the welfare statutes are to be interpreted

by adopting principles of liberal interpretation, so as to ensure that the

right of compensation is not denied, based on certain presumptions and

assumptions. Contrarily, certain possible preferences and factual

inferences are to be drawn in favour of the claimants, so as to grant

compensation. Such an approach would be pragmatic and will satisfy the

requirement of welfare legislation.

6. As far as the present case is concerned, the factum regarding

the untoward incident was established. The DRM Report, which is

elaborate, also deals with various aspects regarding the untoward

incident. The conclusion of the DRM Report is more important, which

reads as under:

“7.0 CONCLUSION: Investigation was made and oral and documentary evidence were collected in this connection which stated that the journey ticket produced by GRP/RMM is not related to his journey on 29.05.2016 https://www.mhc.tn.gov.in/judis/

C.M.A.No.2132 of 2019

by train No.16102, as it shows journey only upto Ramanathapuram Railway Station and distance of Km

103. But journey distance of Ramanathapuram from Rameshwaram is about 54 Kms. So he was not having railway ticket during his journey by the train. On 29.05.2016, he boarded in unreserved coach of the Tn.16102 for going somewhere and definitely traveled on foot board of the train in a careless negligence manner resulting which, he was fell down from the train.

In the above circumstances, it is concluded that there is no substances of mistake on the part of railway in the incident. Hence the case is completely baseless and claim made by the Applicant is false.”

7. The DRM Report categorically reveals that the deceased was

holding a ticket for journey upto Ramanathapuram Railway station.

Thus, admittedly, he was a passenger travelling in a train up to

Ramanathapuram. However, he has no valid ticket travel to

Ramanathapuram from Rameshwaram, which is about 54 Kms.

Therefore, the report states that on 29.05.2016, the deceased boarded in

unreserved coach of the Tn.16102 for going somewhere and definitely

traveled on the foot board of the train in a careless, negligence manner,

resulting which, he was fell down from the train. Thus, the Divisional https://www.mhc.tn.gov.in/judis/ Railway Manager arrived a definite conclusion that the deceased

C.M.A.No.2132 of 2019

traveled in the train and more so, in an Unreserved Compartment and

formed an opinion that he traveled in a negligence manner in the

Unreserved compartment.

8. This Court is of the opinion that mere negligence or

carelessness are insufficient to deny the compensation. If at all, the

exclusion clause are to be invoked under Section 124-A of the Railways

Act, it is to be established by the Railways that there was an intention to

commit criminal act or mens rea is to be established for self-inflicted

injury. In the absence of any intention or criminal act on the part of the

deceased / injured, the negligence or carelessnesses cannot be attributed,

so as to disentitle the claimants from getting the compensation. This

being the principles to be adopted, this Court is of an opinion that the

DRM Report is unambiguous that the untoward incident occurred and

the deceased was a passenger till Ramanathapuram Railway Station as

as he was holding a valid travel ticket upto Ramanathapuram.

Thereafter, the subsequent travel ticket was not retrieved nor produced.

Under those circumstances, the Railway must establish that the deceased

was not a passenger at all. Once the DRM Report reveals that the

deceased was a passenger, then there is no reason to deny compensation https://www.mhc.tn.gov.in/judis/

C.M.A.No.2132 of 2019

to the victims.

9. The Tribunal though made a finding that “We are prepared to

assume that it was an untoward incident, but not so as to secure any

compensation for the dependents because he had no valid authority to

travel in the said train, a fall from which would have caused the death.”

Thus, the Tribunal formed an opinion that there was an untoward

incident. In view of the fact that the travel ticket was not produced, the

Tribunal arrived a conclusion that the claimants are not entitled for

compensation. However, the Tribunal failed to consider that the

Railways have not established that the deceased was not a bonafide

passenger. In the absence of any valid travel ticket in such

circumstances, the burden is to be shifted on the Railways to establish

that the deceased / injured was not a bonafide passenger and in the

present case, the Railways have not established the same.

10. Therefore, the judgment dated 22.02.2018 passed in O.A.(II

U).No.84/2017 is set aside and Civil Miscellaneous Appeal in

C.M.A.No.2132 of 2019 stands allowed. The appellants are entitled for

the compensation of Rs.8,00,000/-(Rupees Eight Lakhs only) along with https://www.mhc.tn.gov.in/judis/

C.M.A.No.2132 of 2019

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 with accrued interest before the Railway Tribunal concerned

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

judgment and on such deposit, the 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. No costs.

The award amount is 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 appellants 2, 3, 4 and 5 / Son and Daughters of the deceased are entitled for Rs.1,00,000/- Each(Rupees One Lakh each).

10.03.2021

kak Index: Yes/No Internet:Yes/No Speaking order/Non-Speaking Order To The Railway Claims Tribunal, Chennai Bench.

https://www.mhc.tn.gov.in/judis/ S.M.SUBRAMANIAM, J.

C.M.A.No.2132 of 2019

kak

C.M.A.No.2132 of 2019

10.03.2021

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