Dhanam vs Union Of India
2023 Latest Caselaw 12052 Mad

Citation : 2023 Latest Caselaw 12052 Mad
Judgement Date : 8 September, 2023

Madras High Court

Dhanam vs Union Of India on 8 September, 2023

                                                                                    C.M.A.No.92 of 2022

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 08.09.2023

                                                          CORAM :

                                  THE HONOURABLE MR. JUSTICE SUNDER MOHAN

                                                     C.M.A.No.92 of 2022

                     1.Dhanam
                     2.Munusammy                                                 ... Appellants

                                                            Versus

                     Union of India, owning Southern Railways
                     Represented by its Through General Manager
                     Southern Railway, Chennai.                               ... Respondent

                     PRAYER: Civil Miscellaneous Appeal filed under Section 23(1) of the
                     Railways Claims Tribunal Act, against the order dated 23.12.2021 made
                     in O.A. (II – U)/MAS/25/2020 on the file of the Railways Claims
                     Tribunal, Chennai.
                                  For Appellants          : Mr.S.Parthasarathy
                                  For Respondent          : Mr.M.Vijay Anand



                                                          JUDGMENT

This appeal has been filed by the appellants challenging the order

of the Tribunal made in O.A. (II – U)/MAS/25/2020, dated 23.12.2021.

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C.M.A.No.92 of 2022

2.The appeal arises under the following circumstances:-

(a).The appellants filed claim petition before the Tribunal stating

that on 04.09.2019, at about 19:20 hrs, the appellants' son, who was the

college going student was traveling in the Electric train; that at that time,

he accidentally fell down from the running train between

Nungambakkam and Chetpet Railway stations, sustained fatal injuries

and died at the place of the incident.

(b)The respondent herein filed the reply statement denying the

averments in the claim petition and stated that the deceased did not travel

in the train; that he was walking along the tracks of Suburban 'Down' line

towards Nungambakkam Railway station; that the Tambaram bound train

hit the deceased and he was thrown to the adjacent Suburban 'Up' line

track and hit by the Chennai Beach bound train.

(c)The appellants examined the mother of the deceased/1st

appellant as A.W.1 and marked the copies of the Station Master's

message, FIR and other connected documents.

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C.M.A.No.92 of 2022

(d)The Tribunal after considering the oral and documentary

evidence dismissed the claim petition stating that the deceased did not

die due to an untoward incident.

(e).Aggrieved over the judgment of the Tribunal, the appellants

have preferred the instant appeal.

3.The learned counsel for the appellants submitted that while

examining A.W.1-the 1st appellant herein, the appellants have discharged

their initial burden of establishing that the accident took place due to an

untoward incident and the deceased was a bonafide passenger; that the

Tribunal had erroneously relied upon the DRM report, which was filed

nearly 18 months after the incident and therefore, the learned counsel

prayed for setting aside the judgment of the Tribunal.

4.The learned counsel for the appellants also relied upon the

judgment of the Hon'ble Supreme Court in the case of UOI Vs. Rina

Devi made in Civil Appeal No.4945 of 2018 dated 09.05.2018 and the

similar judgment in the case of Kamukayi & Ors. vs. Union of India &

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C.M.A.No.92 of 2022

Ors in C.A.No.3799 of 2023, dated 16.05.2023 in support of his

submission that once the initial burden is discharged by the claimants,

the onus shifts to the Railway Authorities to show that the deceased was

not a bonafide passenger.

5.The learned counsel for the respondent per contra submitted that

the witness examined on the side of the appellants was not an eye witness

and no evidence has been let in to show that the deceased died due to an

untoward incident while traveling in the train; that even assuming that

the DRM report was filed belatedly, the appellants have not established

that the deceased was a bonafide passenger and died due to an untoward

incident and prayed for dismissal of the appeal.

6.On perusal of the records, it is seen that, there cannot be any

dispute in the proposition of law that where the initial burden had been

discharged by the appellants to show the the deceased was a bonafide

passenger and died due to an untoward incident, by way of filing the

affidavit, the burden shifts to the Railway Authorities. In the instant case

it is seen that except A.W.1/the mother of the deceased, who was not an

eye witness, no evidence has been let in on the side of the appellants to https://www.mhc.tn.gov.in/judis

C.M.A.No.92 of 2022

show that the deceased traveled in the train and was a bonafide

passenger.

7.The affidavit of A.W.1, whose version is hearsay, cannot be

treated as a discharge of the initial burden on the appellants. The earliest

version available on record is the letter from the Commercial Supervisor

of Booking Office at Nungambakkam Railway station to the Sub-

Inspector, Government Railway Police, Chennai on 04.09.2019 at about

19.00 hrs. In the said letter, it is stated that the male passenger aged 19

years was run-over and was killed in the track between Nungambakkam

to Chetpet Railway station.

8.It is also seen that an FIR was registered. After the registration

of FIR, the final report was filed and the same was sent to the Tahsildhar,

Egmore by the Sub-Inspector of Police, Railway Police Station, Egmore

stating as follows:

“From the statement of the doctor while the deceased was traveling in a electric train running had accidentally fall from train hence the death of the deceased due to accident by falling from electric train and submit this final report”

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C.M.A.No.92 of 2022

This Court is of the view that the report of the Sub-Inspector of Police is

based on the statement of the Doctor. It is not known as to how the

Doctor had stated that the deceased sustained injuries due to fall from the

train. The Doctor was also not examined. Therefore, the report of the

Sub-Inspector of Police cannot be the basis to hold that the deceased

traveled in train and was a bonafide passenger. The appellants are also

unable to produce any ticket. Considering all the above facts this Court is

of the view that the judgment of the Tribunal dismissing the claim

petition cannot be faulted and the appeal is liable to be dismissed.