Madras High Court
S. Devaraj vs The Union Of India Owning on 3 March, 2022
C.M.A. No.3126 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.03.2022
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
C.M.A. No.3126 of 2018
S. Devaraj
.... Appellant
versus
The Union of India owning,
Southern Railway,
Represented by its
General Manager,
Chennai - 600 003. ... Respondent
Civil Miscellaneous Appeal filed under Section 23 of Railway Claims
Tribunal Act, 1987 to set aside the order dated 28.09.2018 passed by the
Railway Claims Tribunal, Chennai Bench in OA(II-U) No. 68 of 2018
granting an award for the statutory compensation of Rs.8,00,000/- with
interest at 12 % p.a. from the date of filing of the claim application viz.,
21.04.2017 till the date of payment and costs of the proceedings.
For Appellant : Mr. R. Sekaran
For Respondent : Ms. Savitha
1/20
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C.M.A. No.3126 of 2018
JUDGMENT
The claimant in O.A.No.68 of 2017on the file of the Railway Claims
Tribunal, Chennai is the appellant herein.
2. The facts necessitating filing of the claim petition before the
Claims Tribunal arose owing to an incident which occurred on 23.02.2017,
on which date, while the appellant, who was traveling in an EMU train from
Perungulatur to Chennai Beach Station in the morning at around 8:50 hours,
due to heavy rush, speed, jerk and jolt of the train, accidentally fell down
from the running train between Palavanthangal and St. Thomas Mount
Railway Stations and suffered grievous injuries on his face and both the
legs. Totally seven passengers had fallen down. Two died on the spot and
five suffered grievous injuries. The petitioner was one among them.
3. The nature of injuries, which he suffered were injuries over left
foot femoral head, left forearm fracture, head injury. His left foot was
amputated. There was also subcutaneous block and the fractured ulna had
been stabilized with seven holes. There was total hip replacement after one
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month of discharge. He was also advised to wear a prosthetic leg below the
knee. These are all very serious and grievous injuries. His retina also had to
be operated upon. In view of these injuries, which he suffered, while he was
actually travelling in the train, he preferred the claim petition.
4. The Railway Claims Tribunal thereafter proceeded to determine
whether he was a bona fide passenger and came to the conclusion that he
was not a bona fide passenger because he did not produce the season ticket
which he claimed to have purchased in Beach Station.
5. My attention has been brought to a judgment of the Hon'ble
Supreme Court in Civil Appeal No. 4945 of 2018 in the case of Union of
India vs. Rina Devi wherein compensation was claimed with respect to a
similarly placed passenger and the stand taken by the railways was that the
deceased therein was not a passenger but was wandering near the railway
track. It was also stated that he was suffering from mental disorder. The
Hon'ble Supreme Court had examined Section 23(c) of the Railway Act,
1989, wherein it is stated as follows:
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'Section 123.Definitions:
2[(c) "untoward incident" means-
(1)(i) the commission of a terrorist act within the
meaning of sub-section (1) of section 3 of the
Terrorist and Disruptive Activities (Prevention) Act,
1987 (28 of 1987); or
(ii) the making of a violent attack or the commission of
robbery or dacoity; or
(iii) the indulging in rioting, shoot-out or arson, by any
person in or on any train carrying passengers, or in a
waiting hall, cloak room or reservation or booking
office or on any platform or in any other place within
the precincts of a railway station; or
(2) the accidental falling of any passenger from a train
carrying passengers.]'
6. With respect to the application of principle of strict liability and
also regarding the burden of proof and incidentally about the definition of a
passenger, it has been stated that the initial burden whether the claimant was
a bona fide passenger or not will be on the claimant and that can be
discharged by filing an affidavit of the relevant facts and then the burden
will shift on the railways to disprove that fact.
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7. In the instant case, the fact the accident occurred cannot be denied
or disputed. The fact that in the said accident totally seven persons suffered
and two of them died and five of them suffered grievous injuries again
cannot be denied or disputed.
8. An affidavit had been filed by the appellant affirming that he was
travelling in the train when the accident occurred and that he was one
among the seven others who met with the accident. The accident occurred
owing to the curve which the railway line took and the closeness of the
electric pole adjacent to the railway track.
9. It is argued by the learned counsel for the respondent that since the
injured were carrying bags on their shoulders, the bags got hit by the
electric pole and as a result of which the passenger fell down. I wonder at
such an argument. Moreover, this cannot be the reason for all seven
passengers carrying a bag is not prohibited while travelling in a train.
Therefore, the contention that there was jolting of the train that was
responsible for the accident reasonably appears to be correct.
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10. Thus, the judgment in Union of India vs. Rina Devi referred
supra applies with force to the facts of the present case. The relevant
portion of the said judgment is extracted herein below:
'Re: (ii) Application of Principle of Strict
Liabillity – Concept of Self Inflicted Injury
16.1 From the judgments cited at the Bar we
do not see any conflict on the applicability of the
principle of 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.
In Prabhakaran Vijaya Kumar (supra) it was held
that Section 124A lays down strict liability or no
fault liability in case of railway accidents. Where
principle of strict liability applies, proof of
negligence is not required. This principle has been
reiterated in Jameela (supra).
16.2 Coming to the proviso to Section 124A
to the effect that no compensation is payable if
passenger dies or suffers injury due to the
situations mentioned therein, there is no difficulty
as regards suicide or attempted suicide in which
case no compensation may be payable. Conflict of
opinions in High Courts has arisen on
understanding the expression ‘self inflicted injury’
in the proviso. In some decisions it has been held
that injury or death because of negligence of the
victim was at par with self inflicted injury. We may
refer to the decisions of High Courts of Kerala in
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C.M.A. No.3126 of 2018
Joseph PT (supra), Bombay in Pushpa (supra) and
Delhi in Shayam Narayan (supra) on this point.
16.3. In Joseph PT (supra), the victim
received injuries in the course of entering a train
which started moving. Question was whether his
claim that he had suffered injuries in an ‘untoward
incident’ as defined under Section 123(c) could be
upheld or whether he was covered by proviso to
Section 124A clause (b). The High Court held that
while in the case of suicide or attempt to commit
suicide, intentional act is essential. Since the
concept of ‘self inflicted injury’ is distinct from an
attempted suicide, such intention is not required
and even without such intention if a person acts
negligently, injuries suffered in such an accident
will amount to ‘self inflicted injury’. Relevant
observations are :
“Therefore, the two limbs of the
Proviso should be construed to have
two different objectives to be
achieved. We can understand the
meaning of the term "self-inflicted
injury" not only from the sources
provided by the dictionaries, but also
from the context in which it is used in
the statute. The term "self-inflicted
injury" used in the statute can be
deduced as one which a person
suffers on account of one's own
action, which is something more than
a rash or negligent act But it shall
not be an intentional act of attempted
suicide. While there may be cases
where there is intention to inflict
oneself with injury amounting to self-
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C.M.A. No.3126 of 2018
inflicted injury, which falls short of
an attempt to commit suicide, there
can also be cases where, irrespective
of intention, a person may act with
total recklessness, in that, he may
throw all norms of caution to the
wind and regardless to his age,
circumstances, etc. act to his
detriment.
Facts of this case show that the
appellant attempted to board a
moving train from the off side
unmindful of his age and fully aware
of the positional disadvantageous
and dangers of boarding a train from
a level lower than the footboard of
the train. It is common knowledge
that the footboard and handrails at
the doors of the compartment are
designed to suit the convenience of
the passengers for boarding from and
alighting to the platform. And at the
same time, when a person is trying to
board the train from the non-
platform side, he will be standing on
the heap of rubbles kept beneath the
track and that too in a lower level.
Further more, he will have to stretch
himself to catch the handrails and
struggle to climb up through the
footboard hanging beneath the bogie.
The probability of danger is
increased in arithmetic progression
when the train is moving. Visualising
all these things in mind, it can only
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C.M.A. No.3126 of 2018
be held that the act of the appellant
was the height of carelessness,
imprudence and foolhardiness. It is
indisputable that the purpose of
Section 124A of the Act is to provide
a speedy remedy to an injured
passenger or to the dependants of a
deceased passenger involved in an
untoward incident. Section 124A of
the Act provides for compensation to
a passenger or his dependants who
suffers injury or death, as the case
may be, in an untoward incident even
where the untoward incident is not
the consequence of any wrongful act,
neglect or default on the part of the
Railway Administration. To this
extent, it can be said to be a no-fault
liability. Even though the provisions
relating to payment of compensation
in the Act can be said to be a piece of
beneficial legislation, it cannot be
stretched too much to reward a
person who acts callously, unwisely
or imprudently. There is no provision
of law brought to our notice
permitting the passengers to entrain
from the non-platform side of the
railway track. However, the counsel
for the respondent did not show any
provision of law prohibiting the
same. The question whether an act by
which a passenger sustains injury
while boarding a train through the
off side, is a self- inflicted injury or
not depends on the facts of each case.
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Merely because a person suffered
injury in the process of getting into
the train through the off side, it may
not be sufficient to term it as a self-
inflicted injury, unless the facts and
circumstances show that his act was
totally imprudent, irrational, callous
and unmindful of the consequences.
All the facts and circumstances
established in this case would show
that the act of the appellant was with
full knowledge of the imminent
possibility of dangering his life or
limb and therefore, it squarely comes
within the term "self-inflicted injury"
defined in Section 124A Proviso (b)
of the Act.”
16.4 In Pushpa (supra) a hawker died in the
course of boarding a train. It was held that he was
not entitled to compensation as it was a case of
‘self inflicted injury’. The relevant observations
are :
“Such an attempt by a hawker has
been viewed by the trial Court as
something amounting to criminal
negligence on his part and also an
effort to inflict injuries to himself.
The trial Court reasoned that if the
deceased had to sell his goods by
boarding a train, he should have
ensured to do so only when it was
quite safe for him to get on to the
train or otherwise he could have
avoided catching the train and waited
for another train to come. It also
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C.M.A. No.3126 of 2018
hinted that there was absolutely no
compulsion or hurry for the deceased
in the present case to make an
attempt to somehow or the other
board the train while it was
gathering speed.”
16.5 In Shyam Narayan (supra), same view
was taken which is as follows :
“6(ii) I cannot agree with the
arguments urged on behalf of the
appellants/applicants in the facts of
the present case because there is a
difference between an untoward
incident and an act of criminal
negligence. Whereas negligence will
not disentitle grant of compensation
under the Railways Act, however,
once the negligence becomes a
criminal negligence and self-inflicted
injury then compensation cannot be
granted. This is specifically provided
in the first proviso to Section 124-A
of the Railways Act which provides
that compensation will not be
payable in case the death takes place
on account of suicide or attempted
suicide, self inflicted injury, bona fide
passenger's own criminal act or an
act committed by the deceased in the
state of intoxication or insanity.”
16.6 We are unable to uphold the above
view as the concept of ‘self inflicted injury’ would
require intention to inflict such injury and not
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C.M.A. No.3126 of 2018
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.
Re: (iii) Burden of Proof When Body Found on
Railway Premises – Definition of Passenger :
17.1 Conflict of decisions has been pointed
out on the subject. As noticed from the statutory
provision, compensation is payable for death or
injury of a ‘passenger’. In Raj Kumari (supra)
referring to the scheme of Railways Act, 1890, it
was observed that since travelling without ticket
was punishable, the burden was on the railway
administration to prove that passenger was not a
bonafide passenger. The Railway Administration
has special knowledge whether ticket was issued or
not. 1989 Act also has similar provisions being
Sections 55 and 137. This view has led to an
inference that 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
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C.M.A. No.3126 of 2018
compensation. However, Delhi High Court in
Gurcharan Singh (supra) held that initial onus to
prove death or injury to a bona fide passenger is
always on the claimant. However, such onus can
shift on Railways if an affidavit of relevant facts is
filed by the claimant. A negative onus cannot be
placed on the Railways. Onus to prove that the
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. The Delhi High Court observed as
follows :
“3(ii) In my opinion, the contention of the learned
counsel for the appellants/claimants is totally
misconceived. The initial onus in my opinion
always lies with the appellants/claimants to show
that there is a death due to untoward incident of a
bona fide passenger. Of course, by filing of the
affidavit and depending on the facts of a particular
case that initial onus can be a light onus which can
shift on the Railways, however, it is not the law
that even the initial onus of proof which has to be
discharged is always on the railways and not on
the claimants.
I cannot agree to this proposition of law that the
Railways have the onus to prove that a deceased
was not a bonafide passenger because no such
negative onus is placed upon the Railways either
under the Railways Act or the Railway Claims
Tribunal Act & Rules or as per any judgment of the
Supreme Court. No doubt, in the facts of the
particular case, onus can be easily discharged
such as in a case where deceased may have died at
a place where he could not have otherwise been
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unless he was travelling in the train and in such
circumstances depending on the facts of a
particular case it may not be necessary to prove
the factum of the deceased having a ticket because
ticket as per the type of incident of death can easily
be lost in an accident. I at this stage take note of a
judgment of a leaned Single Judge of this Court in
the case reported as Pyar Singh Vs. Union of India
2007 (8) AD Del. 262 which holds that it is the
claimant upon whom the initial onus lies to prove
his case. I agree to this view and I am bound by
this judgment and not by the ratio of the case of
Leelamma (supra).”
17.2 In Jetty Naga Lakshmi Parvathi (supra)
same view was taken by a single Judge of Andhra
Pradesh after referring to the provisions of the
Evidence Act as follows :
“22. So, from Section 101 of the
Indian Evidence Act, 1872, it is clear
that the applicants, having come to
the court asserting some facts, must
prove that the death of the deceased
had taken place in an untoward
incident and that the death occurred
while the deceased was travelling in a
train carrying passengers as a
passenger with valid ticket.
Therefore, having asserted that the
deceased died in an untoward
incident and he was having a valid
ticket at the time of his death, the
initial burden lies on the applicants to
establish the same. The initial burden
of the applicants never shifts unless
the respondent admits the assertions
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C.M.A. No.3126 of 2018
made by the applicants. Such
evidence is lacking in this case.
Except the oral assertion of A.W.1, no
evidence is forthcoming on behalf of
the applicants.
The court may presume that the
evidence which could be, and is not
produced, would, if produced, be
unfavourable to the person who
withholds it. The best evidence rule,
which governs the production of
evidence in courts, requires that the
best evidence of which the case in its
nature is susceptible should always
be produced. Section 114(g) of the
Indian Evidence Act, 1872 enables
the court to draw an adverse
presumption against a person who
can make available to the court, but
obstructs the availability of such an
evidence. The Claims Tribunal, upon
considering the material on record,
rightly dismissed the claim of the
applicants and there are no grounds
in this appeal to interfere with the
order of the Tribunal.”
17.3 In Kamrunnissa (supra), from the
circumstances appearing in that case it was held
that there was no evidence that the deceased had
purchased the ticket. In the given fact situation of
that case, this Court inferred that it was not a case
of ‘untoward incident’ but a case of run over. It
was observed :
“7. The aforestated report also
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reveals, that the body of the deceased
had been cut into two pieces, and was
lying next to the railway track. The
report further indicates, that the
intestine of the deceased had come
out of the body. The above factual
position reveals, that the body was
cut into two pieces from the stomach.
This can be inferred from the facts
expressed in the inquest report, that
the intestines of the deceased had
come out of the body. It is not
possible for us to accept, that such an
accident could have taken place
while boarding a train.
8. In addition to the factual position
emerging out of a perusal of
paragraphs 7 & 8 extracted
hereinabove, the report also reveals,
that besides a pocket diary having
been found from the person of the
deceased a few telephone numbers
were also found, but importantly, the
deceased was not in possession of
any other article. This further clears
the position adopted by the railway
authorities, namely, that the deceased
Gafoor Sab, was not in possession of
a ticket, for boarding the train at the
Devangere railway station.”
17.4 We thus hold that mere presence of a
body on the Railway premises will not be
conclusive to hold that injured or deceased was a
bona fide passenger for which claim for
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compensation could be maintained. However,
mere absence of ticket with such injured or
deceased will not negative the claim that he was a
bona fide passenger. Initial burden will be on the
claimant which can be discharged by filing an
affidavit of the relevant facts and burden will then
shift on the Railways and the issue can be decided
on the facts shown or the attending
circumstances. This will have to be dealt with
from case to case on the basis of facts found. The
legal position in this regard will stand explained
accordingly. Re: (iv) Rate of Interest'
The aforesaid judgment is the law as on date.
.
11. The reasoning of the Tribunal that the appellant herein is not
entitled for compensation, since, according to them, he was not a bona fide
passenger, is rejected by me and that reasoning is set aside. The judgment
of the Hon'ble Supreme Court has laid down in very clear terms, that if an
affidavit is filed, the initial burden of being a bona fide passenger is
discharged by the claimant.
12. In the instant case, the claimant has filed an affidavit. An FIR
has also been registered which clearly indicates that he fell down from that
particular train along with other passengers. These are facts which cannot
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be denied or disputed. In view of the above reasoning, the order of the
Tribunal has to be set aside and is set aside and the matter is remitted back
for fresh disposal, to determine the compensation payable keeping in view
the dictum laid down in the judgment of the Hon'ble Supreme Court referred
to supra.
13. It is made clear that the opinion and finding of the Railway
Claims Tribunal that the appellant is not a bona fide passenger has been set
aside by this court. The Tribunal will now have to determine the
compensation payable for the injuries suffered and to that extent, the
claimant is permitted to lead evidence by producing relevant medical
reports. On the basis of such medical reports, the Tribunal has to determine
the just compensation payable to the claimant, without raising the issue of
bona fide passenger once again, in view of the judgment of the Hon'ble
Supreme Court referred supra and particularly in view of the fact that the
appellant was actually a passenger who fell down along with seven others
when the train took a curve and passengers were hit by the electric pole at
that particular area since the electric pole was close to the railway track
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14. The Civil Miscellaneous Appeal is, therefore, allowed and the
order dated 28.09.2018 in O.A. No. 68 of 2017 is set aside and the matter is
remitted back to the Railway Claims Tribunal for fresh consideration on the
issue of determination of compensation. No order as to costs. The Railways
Claims Tribunal is directed to dispose of O.A.No.68 of 2017 on or before
30.09.2022. I am informed that the records of the Tribunal have not been
forwarded to this court. Therefore, O.A.No.68 of 2017 can be taken up for
further hearing by the Railway Claims Tribunal without any unnecessary
delay.
03.03.2021
mrn
Index : Yes / No
Internet : Yes / No
Speaking / Non speaking
To :
1. Railway Claims Tribunal,
Chennai Bench
2. The Section Officer,
V.R. section,
High Court, Madras - 104.
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C.M.A. No.3126 of 2018
C.V.KARTHIKEYAN, J.
(mrn)
C.M.A. No.3126 of 2018
03.03.2022
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