Madras High Court
M.Ananthi vs Union Of India on 28 November, 2023
C.M.A.No.3289 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.11.2023
CORAM:
THE HONOURABLE MR. JUSTICE K. RAJASEKAR
C.M.A.No.3289 of 2021
1.M.Ananthi
2.M.Dhivahar
3.Baby Sakthi Sowmya
(The Appellants 2 and 3 are minors
represented by the 1st Appellant
through their mother as natural Guardian)
4.S.Vadivu ...Appellants
Vs.
1.Union of India,
Owning Southern Railway,
Rep. by its General Manager,
Chennai - 600 003.
2.S.Sakthivel …Respondents
Memorandum of Grounds of Civil Miscellaneous Appeal filed under
Section 173 of Motor Vehicles Act, 1988 against the Judgment dated
30.07.2021 passed in O.A.(II-u)/MAS/181/2019 by the Railway Claims
Tribunal, Chennai Bench.
For Appellants : Mr.B.Thirumalai
For R1 : Mr.M.Vijay Anand
For R2 : Given up
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Page 1 of 11
C.M.A.No.3289 of 2021
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the claimants
challenging the dismissal of their claims before the Railway Claims Tribunal,
Chennai in OA(II-u)/MAS/181/2019.
2.For the sake of convenience, the parties are referred to herein
according to their litigative status before the Tribunal. The case in brief is as
follows:-
3.The case of the claimants is that the deceased herein, namely,
Marithurai, who is the husband of the first claimant and father of the second and
third claimants, was travelling from Chennai Egmore to Thoothukudi on
01.12.2017 along with his uncle namely one Subbiah. While travelling on the
Pearl City Express train between Singaperumal Koil to Paranur railway station,
due to heavy rush, speed, jerk and jolt of the train, the deceased accidentally fell
down and suffered grievous injuries and died at the place of occurrence. The
body of the deceased was noticed by the night patrolman of the Singaperumal
Koil and Paranur Station at about 5.00 hrs on 02.12.2017. It is the further case
of the claimants that the uncle of the deceased was not aware about the
occurrence, since he was seated inside the train and came to know only after
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reaching Tuticorin. The FIR regarding the dead body found near Singaperumal
Koil station was registered on the file of the Chengalpattu Railway Police. An
investigation was conducted by the police and it was concluded that the
deceased fell down from the running train due to over crowd. Since the
deceased died, the claimants put forward this claim before the Railway Claims
Tribunal seeking compensation. To prove the case of the claimants, the first
claimant examined herself as A.W.1 and Exs.A1 to A6 were marked. On the
side of the first respondent, DRM report was marked as Ex.R1. The Railway
Claims Tribunal, on hearing both sides, dismissed the claim petition. Hence,
the appellants have filed this appeal.
4. Heard the learned counsel appearing for the appellants and the
learned counsel appearing for the first respondent and perused the materials
available on record.
5. The claimants filed the claim petition on the ground that the first
appellant was informed by her uncle that the deceased on 01.12.2017 at about
5.00 p.m. along with his uncle namely one Subbiah were going to Thoothukudi
and they boarded the Pearl City Express on that day. In support of the claim, the
claimants also relied on the inquest report recorded by the police during
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investigation stating that a dead body was found at KM 54/34-36 between
Singaperumal Koil station and Paranur railway station. Therefore, when it has
been established that the deceased, while travelling in Pearl City Express from
Chennai to Thoothukudi, accidentally fell down and suffered grievous head
injury and died, they are entitled to the compensation amount.
6. Per contra, the learned counsel appearing for the first respondent
submitted that to prove the prima facie claim of the claimants that the deceased
was a bonafide passenger, the first respondent summoned the co-passenger one
Subbiah to appear and adduce evidence, but he has not come forward to adduce
any evidence to throw more light on the facts of the case. Therefore, he
submitted that the appellants are not entitled to any compensation and no
interference is called for in the impugned order.
7. It is seen from the records that on 02.12.2017, the Station Master of
Singaperumal Koil station received a message regarding male dead body found
lying on the track at KM 54/800-900. Immediately, he transferred the
information to the Government railway police at Chengalpattu and an FIR was
registered in Crime No.117 of 2017 under Section 174 Cr.P.C. From the dead
body, they also found the ticket bearing no.81441583, which was issued as an
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ordinary ticket at Pattabiram station on 01.12.2017 at 17.22 hours to travel from
Pattabiram to St.Thomas Mount. From the dead body, a cell phone as well as
cash of Rs.800/- were recovered. No other ticket authorising the deceased to
travel in any other train, more particularly, for travel between Singaperumal
Koil station and Paranur railway station was found. Hence, the appellants have
failed to prove the fact that the deceased had a valid ticket on the date of
occurrence to claim that he was a bona fide passenger.
8. The Hon'ble Apex Court in Union of India vs. Rina Devi and others
[2019 (3) SCC 572] has considered the issue of burden of proof when the body
was found on the railway station premises and definition of passenger, and has
held as follows:-
“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
bona fide 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
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to be a bona fide passenger so as to maintain a claim for
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
bona fide 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 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
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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
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
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inferred that it was not a case of ‘untoward incident’ but a
case of run over. It was observed :
“7. The aforestated report also 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 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.”
9. The burden of proof is on the appellants/claimants to prove that the
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deceased was a bona fide passenger and that mere presence of a body on the
railway premises will not be conclusive to hold that the deceased was a bona
fide passenger. Once the prima facie fact is established by the claimants that the
deceased had travelled after purchasing a proper and valid ticket, then the
burden is on the railways to prove that the deceased was not a bona fide
passenger. Admittedly, in this case, the first claimant has categorically stated
that her husband did not inform to her about the purchase of the ticket. The
belonging of the deceased was also recovered by the railway police and more
particularly cell phone and cash of Rs.800/- were recovered. This shows that the
belongings of the deceased were found and does not go missing. The evidence
placed on record by the claimants does not prima facie establish that deceased
had travelled in the train after purchasing valid ticket. The DRM Report marked
as Ex.R1 also shows that the ordinary ticket purchased was for the travel from
Pattabiram to St. Thomas Mount railway station and the same was not to travel
between Singaperumal Koil station and Paranur railway station where the body
was found. The respondent Railways also produced a counter evidence to show
that the deceased did not travel in the Pearl City Express as stated by the
claimants herein. Therefore, this Court is of the view that since there is no
prima facie evidence produced by the claimants to show that the deceased
travelled in the Pearl City express as a bona fide passenger, as the ordinary
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ticket found in possession of the deceased was for the travel from Pattabiram to
St.Thomas Mount only on the date of occurrence, and the co-passenger has also
not adduced any evidence to the contrary for travel in the Pearl City express or
any other train running in the particular route, the claimants are not entitled to
any compensation. Therefore, finding no infirmity in the impugned order, this
civil miscellaneous appeal stands dismissed. No costs.
28.11.2023
Internet : Yes
Index : Yes/No
Speaking order/Non-speaking order
rjr
https://www.mhc.tn.gov.in/judis
K.RAJASEKAR, J.
rjr
To
1.The Railway Claims Tribunal, Chennai Bench.
2.The Section Officer,
V.R.Section,
High Court, Madras.
28.11.2023
https://www.mhc.tn.gov.in/judis
