Perka Devamma vs The Union Of India,
2023 Latest Caselaw 2828 Tel

     THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

        CIVIL MISCELLANEOUS APPEAL No.208 OF 2019

JUDGMENT:

Aggrieved by the dismissal Order passed by the Railway

Claims Tribunal, Secunderabad Bench (for brevity, 'the Tribunal'),

in OA II (U) No.39 of 2014, dated 10.12.2018, the applicants have

preferred the present appeal.

2. For the sake of convenience, hereinafter, the parties will be

referred as per their array before the Tribunal.

3. The brief facts of the case are that, the applicants have filed

an application under Section 16 of the Railway Claims Tribunal Act,

1987 seeking compensation of Rs.4,00,000/- on account of the

death of Perka Dharmaiah in an untoward incident that occurred on

18.10.2013. As per the applicants, on 17.10.2013 the deceased

with intent to go to Peddapally, started his journey and one Kumar,

friend of applicant No.3 had dropped him up to the railway station.

The deceased-Perka Dharmaiah purchased journey ticket in the

presence of Kumar for travelling from Sirpur Kagaznagar to

peddapally in Ramagiri passenger train. While travelling in the said

journey, the deceased had accidentally fallen down from the

running train in between Rechni Road - Repalliwada railway 2 MGP,J Cma_208_2019

stations and succumbed to the injuries. At that time the journey

ticket was lost. Hence the claim.

4. The respondent-Railways filed counter denying the averments

of the application and contended that there is no cause of action for

the applicants, as the claim does not fall within the ambit of Section

123(c) or 124-A of the Railways Act, 1989. It is further contended

that mere finding of dead body near the railway track does not

confer any right to the applicants to claim compensation from

railways. Further there is no eyewitness to the incident and that

the deceased was not a bona fide passenger and therefore, prayed to

dismiss the application.

5. Based on the above pleadings, the Tribunal framed the

following issues:

1. Whether the applicants are dependents of the deceased?

2. Whether the deceased was a bona fide passenger of train in question and died as a result of an untoward incident?

3. Whether the applicants are entitled to the compensation as claimed and to what relief?

6. Before the Tribunal, on behalf of the applicants, AWs.1 and 2

were examined and got marked Exs.A.1 to A.9. On behalf of

respondent-railways, no witness was examined, however, Divisional

Railway Manager's report was marked as Ex.R1.

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7. The Tribunal after considering the evidence on record, both

oral and documentary, the tribunal has dismissed the application.

Aggrieved by the same, the applicants have filed the present appeal.

8. Heard Sri S.Chandra Sekhar, learned counsel for the

applicants and Smt.G.Rukmini, learned Standing Counsel for

Railways.

9. The main contention of the learned counsel for the applicants

is that though the applicants have proved their case through the

oral evidence of AWs.1 and 2 and also relying on the documents

under Exs.A.1 to A9, the tribunal without considering the same has

erroneously dismissed the application merely based on the

Divisional Railway Manager's report alleging that the deceased is

not a bona fide passenger. Hence, he prayed to allow the appeal.

10. On the other hand, learned counsel for the respondent

Railways submitted that the Tribunal after considering all the

aspects, has rightly dismissed the application. Hence, interference

of this Court is not necessary.

11. Perused the entire material available on record. The applicant

No.3 who is the son of the deceased was examined as AW.1, and

has reiterated the averments of their application. As he is not an

eyewitness of his father going to the railway station, purchasing 4 MGP,J Cma_208_2019

journey ticket and also the accidental death of his father by falling

from the running train, he got examined AW.2. AW.2, who is his

friend deposed that on the day of incident i.e. 17.10.2013 in the

afternoon he went to the house of AW.1 to meet him on some

personal work. At that time, father of AW.1 i.e. the deceased was

going to Peddapally with a small bag and he requested AW.2 to drop

him at railway station. As the deceased is an elderly person and

father of his close friend, he accepted his request and both of them

went on his motorcycle to Sirpur Kagaznagar railway station and

the deceased has purchased journey ticket to travel from Sirpur

Kagaznagar to Peddapally and they came to know that Ramagiri

Express train will arrive to Sirpur Kagaznagar. Therefore, he waited

at railway station till the deceased boarded the train. He was there

till the train left the railway station. On the next day he came to

know that while travelling in the train Sri Dharmaiah has

accidentally fallen down in the middle of the way and by receiving

grievous injuries to his head and died on the spot. He went to

Government Hospital, Bellampally to see the dead body and also

participated in his funerals. Though AWs.1 and 2 are cross-

examined at length, nothing was elicited to disbelieve their evidence.

12. On the other hand, no oral evidence was adduced on behalf of

the respondent-railways. However, copy of Divisional Railway

Manager's report was filed. A perusal of Divisional Railway 5 MGP,J Cma_208_2019

Manager's report discloses that during the enquiry, the evidence

collected by the Railway Protection Force by examining the Guard of

the train No.57122, Loco Pilot of the train No.57122 and Dy.SS of

Bellampalli railway station. The Guard of the train stated that, the

train arrived RLW at 16.37 hours and left at 16.38 hours, reached

RECH at 16.43 hours and left 16.44 hours without any ACP

between RLW-RECH and nobody informed about the falling down of

the passenger in between the two stations. Surprisingly Loco Pilot

has also stated same evidence in his statement.

13. The Dy.SS/BPA stated that on 18.10.2013 he performed duty

from 7.00 to 19.00 hours and received information from

SS/Rapalliwada at about 11-25 hours that one unknown male dead

body lying at km No.226/24-26 between RECH-RLW which is

informed to him by key man Sri M.Chandraiah, Unit

No.3/PWI/BPA. He informed the same to GRP & RPF of BPA

through a message. Based on the evidence of all these witnesses, it

is concluded in the Divisional Railway Manager's report that, "it is

clear that the deceased is not having any journey ticket to say that he

is a bona fide passenger and there is no any authentic record that he

fell down from a running train."

14. It is pertinent to state that Ex.A1 attested copy of First

Information Report, Ex.A2 attested copy of message issued by S.S., 6 MGP,J Cma_208_2019

and Ex.A3 attested copy of inquest report, which were relied on by

the applicants discloses that one unknown male dead body was

found lying between RLW-RECH. Ex.A3 inquest report also

discloses that panch witnesses who participated in the inquest

panchanama came to the conclusion that on 18.10.2013 the

deceased has accidentally fallen down from the train between

Rechini Road and Repallewada railway stations at KM No.226/24-

26 between UP line and DN line and the deceased received grievous

blood injuries to the head and other parts and died on the spot.

15. It is also important to note that one of the witnesses i.e. 3rd

witness Sri M.Chandraiah, is a Key man who saw the dead body for

the first time and intimated to Dy.SS, South Central Railway,

Rapalliwada railway station. The said Dy.S.S., is also one of the

panch witnesses to the inquest panchanama. So, the witness i.e.

Dy.S.S., South Central Railway, and the Key man have opined that

the deceased has fallen down from an unknown DN train in the

middle of the way of journey between Rechini road - Repallewada

railway stations and they came to the conclusion that he has

accidentally fallen down between UP line and DN line and the

deceased received grievous blood injuries at head and other parts

and died due to heavy bleeding.

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16. Though Dy.S.S. in the inquest came to the conclusion that

the deceased has accidentally fallen down from the train, but he has

not stated in the evidence collected by R.P.F. But simply stated that

he received information from the Key man M.Chandraiah.

Furthermore, in the joint observation report, it has been mentioned

that the deceased has fallen down from an unknown train and it is

an accidental death.

17. A perusal of the final report under Ex.A5 also discloses that

during the course of investigation, it is well established that on

17.10.2013 at 15-30 hours the deceased left home to go to his

brother's house at Peddapalli, and that on 18.10.2013 at 11-00

hours he accidentally fell down from the running unknown train, as

a result, the deceased sustained fatal injuries and died on the spot.

There is no foul play is suspected in the cause of death of the

deceased and it is a clear case of accidental death due to fell down

from an unknown down running train. Therefore, it is clearly

established that the deceased had fallen down from the running

train while he was travelling and an untoward incident happened

and he died due to the injuries sustained by him.

18. The main contention of the learned counsel for respondent-

Railways is that the deceased is not a bona fide passenger, as no

journey ticket was found with him.

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19. In Rina Devi v. Union of India 1, the Honourable Supreme

Court held as follows:

"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."

20. In the instant case, the applicants have filed affidavits of

AWs.1 and 2 along with the documentary evidence in the form of

Exs.A1 to A9 and thus, they have discharged their initial burden.

Accordingly, the burden shifts on to the respondent-railways to

establish that the deceased was not a bona fide passenger. In

discharge of such burden, the respondent got marked Ex.B1 i.e.,

DMR report, which discloses that the officials, who gave statements,

have deposed about the incident, only based on the information

provided by the guard of the train. However, Ex.A5 Final Report

shows that there is no foul play is suspected in the cause of death

(2019) 3 SCC 572 9 MGP,J Cma_208_2019

of the deceased and it is a clear case of "Accidental Death due to fell

down from an unknown down running train". Merely because the

deceased was not possessing journey ticket, it cannot be said that

the deceased did not die in an untoward incident. Thus, following

the above decision of the Apex Court, the contention of the learned

counsel for the respondent-railways that the deceased was not a

bona fide passenger is unsustainable. Hence, the applicants are

entitled for compensation.

21. Coming to the compensation, in case of death in an accident

which occurred before amendment, in 2013 the prevailing basic

figure in respect of death case was Rs.4.00 lakhs.

22. At this juncture, the learned counsel for the appellants relied

upon a decision of the Apex Court in the case of Union of India vs.

Radha Yadav 2, wherein it was held as follows:

"10. The issue raised in the matter does not really require any elaboration as in our view, the judgment of this Court in the case of Rina Devi, 2018 ACJ 1441 (SC), is very clear. What this Court has laid down is that the amount of compensation payable on the date of accident with reasonable rate of interest shall first be calculated. If the amount so calculated is less than the amount prescribed as on the date of the award, the claimant would be entitled to higher of

(2004) 2 SCC 1 10 MGP,J Cma_208_2019

these two amounts. Therefore, if the liability had arisen before the amendment was brought in, the basic figure would be as per the Schedule as was in existence before the amendment and on such basic figure reasonable rate of interest would be calculated. If there be any difference between the amount so calculated and the amount prescribed in the Schedule as on the date of the award, the higher of two figures would be the measure of compensation. For instance, in case of a death in an accident which occurred before amendment, the basic figure would be Rs.4,00,000/-. If, after applying reasonable rate of interest, the final figure were to be less than Rs.8,00,000/-, which was brought in by way of amendment, the claimant would be entitled to Rs.8,00,000/-. If, however, the amount of original compensation with rate of interest were to exceed the sum of Rs.8,00,000/- the compensation would be in terms of figure in excess of Rs.8,00,000/-. The idea is to afford the benefit of the amendment, to the extent possible. Thus, according to us, the matter is crystal clear."

23. The applicants are also entitled for interest @ 7% per annum

on the compensation amount as per the decision of the Honourable

Supreme Court in Kamukayi v. Union of India 3. From the date of

accident i.e., 18.10.2013 to the date of order i.e., 03.10.2023, the

applicants are entitled for interest for 9 years 11 months 15 days =

3 Civil Appeal No. 3799 of 2023 (Arising out of SLP (C) No. 17062/2022) decided on 16.05.2023 11 MGP,J Cma_208_2019

119 months 15 days. Thus, the applicants are entitled for the

compensation along with interest as mentioned below:

24. Thus, the interest awarded to the applicants is calculated for

09 years 11 months 15 days and it works out to Rs.2,78,793/-.

Therefore, the interest along with the compensation amount, to

which the applicants are entitled prevailing at the time of the

accident comes to Rs.6,78,793/- (Rs.4,00,000/- + Rs.2,78,793/-).

25. However, as per the decision of the Apex Court in Radha

Yadav's case (supra), if, after applying reasonable rate of interest,

the final figure were to be less than Rs.8,00,000/-, which was

brought in by way of latest amendment, the claimants would be

entitled to Rs.8,00,000/-. If, however, the amount of original

compensation with rate of interest were to exceed the sum of

Rs.8,00,000/-, the compensation would be in terms of figure in

excess of Rs.8,00,000/-. In the instant case, the final figure comes

to Rs.6,78,793/-. Therefore, the applicants are entitled for the

compensation of Rs.8,00,000/-.

26. In the result, the Civil Miscellaneous Appeal is allowed and

the order passed by the Railway Claims Tribunal, Secunderabad

Bench, in OA II (U) No.39 of 2014 dated 10.12.2018 is set aside.

Consequently the said O.A.II(U) No.39 of 2014 is allowed by

awarding the compensation of Rs.8,00,000/- to the applicants. Out 12 MGP,J Cma_208_2019

of the total compensation, an amount of Rs.5,00,000/- is

apportioned to the share of applicant No.1, and Rs.1,00,000/- each

is apportioned to the share of applicant Nos.2 to 4. The respondent

Railways is directed to deposit the compensation before the Tribunal

within a period of two months from the date of receipt of a copy of

this judgment. On such deposit, applicant Nos.1 to 4 are permitted

to withdraw the entire amount awarded to them. No order as to

costs.

Pending Miscellaneous applications, if any, shall stand closed.

______________________________ JUSTICE M.G.PRIYADARSINI

03.10.2023 pgp