Madras High Court
V.Eswari vs Union Of India Owning Southern Railway on 10 December, 2020
Author: T.Raja
Bench: T.Raja
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 10.12.2020
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
C.M.A. No.267 of 2020
1.V.Eswari
2.N.Saravanakumar .. Appellants
vs
Union of India owning Southern Railway,
rep. by its General Manager,
Southern Railway,
Chennai-600 003. .. Respondent
Prayer: Civil Miscellaneous Appeal filed under Section 23(1) of the
Railway Claims Tribunal Act against the order passed by the Railway
Claims Tribunal, Chennai in O.A. (II-U) No.46/2015 dated 14.12.2015.
For appellants : Mr.S.Parthasarathy
For respondent : Mr.M.Vijay Anand
JUDGMENT
The claimants, appellants herein have come to this Court with this appeal challenging the correctness of the impugned judgment dated http://www.judis.nic.in 2 14.12.2015 passed by the Railway Claims Tribunal, Chennai Bench in O.A. (II-U) No.46/2015 in and by which the Railway Claims Tribunal has held that the appellants are failed to prove that the deceased was a bonafide purchaser and therefore, the question of grant of compensation would not arise for consideration.
2.Learned counsel appearing for the appellants submitted that on 17.02.2012, when the appellants' father, boarded the Dindigul-Madurai Passenger train at Cholavanthanan, in order to proceed to his daughter's house namely Easwari, situated at Madurai, after purchasing the ticket, while the train reached Madurai Railway Station, had accidentally fell down from the running train and sustained grievous injuries on the head, thigh and legs since there was a change of track and due to the same, the train became shaky. Immediately, he was taken to Government Rajaji Hospital, Madurai through 108 Ambulance, as per the information conveyed by one Thiru Magesh, Madurai Railway Police Head Constable. In spite of serious treatment, he died due to grievous injuries sustained by him. Thereafter, one Doctor Vanitha MSDA, who had rendered treatment at Government Rajaji Hospital, Madurai, found out the death at first and conveyed the http://www.judis.nic.in 3 information to the Madurai Railway Police Station. Subsequently, a case has been registered by the Dindigul Railway Police in Crime No.181/2012 under Section 174 of Cr.P.C. making it clear that on 18.02.2012 prior to 6.30 a.m. while the Sub Inspector, namely, Thiru Ganesan was incharge of the police station, the Special Sub Inspector, namely, Thiru Sethu conveyed the message through phone from the Government Rajaji Hospital, Madurai Police Station mentioning that the injured, having been taken by 108 Ambulance from the Madurai Railway Station to the Government Rajaji Hospital, Madurai, died, due to grievous injuries sustained by him.
2.1.Learned counsel for the appellants further submitted that even the Inquest Report prepared by the Madurai Railway Police says that on 18.04.2012 near the signal post situated at the Northern end of Madurai Railway Station, Platform No.3, the deceased, having fallen down from the train accidentally, sustained injuries and died and in respect of the above dead body of the deceased, the inquest was conducted under Section 174 Cr.P.C. Learned counsel for the appellants further submitted that it is an admitted fact that the deceased, while travelling on 17.02.2012 in Dindigul- Madurai Passenger train, after purchasing ticket to go to Madurai to see his http://www.judis.nic.in 4 daughter, died and the inquest report has also been clearly corroborated the same viz. stating that on 18.02.2012 at 9.30 hours, the dead body would be sent for post-mortem examination to the Madurai Medical College Professor through Constable No.346 Mr.Balamurugan, in order to find out the nature of death and as per the order of Mr.M.Ganesan, Special Sub Inspector, being the Enquiry Officer, the deceased has been identified as the father of the appellants. Therefore, when the father of the appellants, admittedly, after purchasing the ticket, while travelling, fell down from the running train within the premises of the Madurai Railway Station and died in the Government Rajaji Hospital, Madurai, it goes without saying that the deceased was a bonafide passenger. It is a clear case covered under Section 123(c)(2) of the Railways Act 1989 which defines 'untoward incident' which means the accidental falling of any passenger from a train carrying passengers, the claimants are entitled to get suitable compensation under Section 124(a) of the Railways Act.
2.2.Taking support from a judgment of mine in C.M.A. Nos.3508 and 2787 of 2008 reported in 2016 (6) CTC 820, learned counsel for the appellants submitted that when a person dies in an accident by falling down http://www.judis.nic.in 5 from train, it is not possible for the legal representatives to produce the ticket or valid authority to travel in the train and depending upon the facts and circumstances of a given case, the Tribunal/the Appellate Court inferred about the deceased being a bonafide passenger for the purpose of deciding the compensation. Again referring to a judgment of the Calcutta High Court in the case of Bandana Misra v. Union of India reported in 2017 ACJ 2447, learned counsel for the appellants submitted that if a person is charged with travelling on a railway without a ticket, the burden of proving that he had a ticket is upon him and such a principle is not applicable to the case of a dead person whose dead body was found on the railway track and whose body was taken in custody by the Railway police. In such a situation, it is the duty of the railway authority to first give evidence that he was without a valid ticket and if such evidence is given, the onus shifts upon the claimants to prove that he was a bonafide passenger having a valid ticket.
2.3.Learned counsel for the appellants further submitted that in the present case, when the appellants have filed an affidavit stating that the deceased, while travelling in the Passenger train at Cholavanthanan, on 17.02.2012, fell down in the Madurai Junction and was immediately taken http://www.judis.nic.in 6 to Government Rajaji Hospital, Madurai by 108 Ambulance and in spite of best treatment, died due to fatal injuries, the burden shifts upon the Railway to prove that he was not a bonafide passenger. Since no evidence was produced by the Railways, it goes without saying that the deceased had accidentally fell down from the running train and died due to grievous injuries, in spite of better treatment. Therefore, the deceased is a bonafide passenger and that claim made by the claimants before the Railway Claims Tribunal cannot be rejected. Learned counsel for the appellants pleaded that since the Tribunal has rejected the prayer for payment of compensation, the appeal deserves to be allowed.
3.Mr.M.Vijay Anand, learned counsel appearing for the respondent heavily opposing the above argument, submitted that the impugned order passed by the Railway Claims Tribunal is perfectly in order. Therefore, the same does not call for any interference by this Court. Arguing further, learned counsel for the respondent pleaded that when it was a claim of the appellants that their father, while travelling in Dindigul to Madurai Passenger train on 17.02.2012, fell down in the Madurai Railway Station from the running train and died due to grievous injuries sustained by him in http://www.judis.nic.in 7 the Government Rajaji Hospital, Madurai, it is the bounden duty cast upon them to establish that their father was a bonafide passenger by showing the travelling ticket or any authority to travel on a particular train. In the present case, when the inquest report and the final report clearly show that the Railway police was able to recover only the Cell phone and purse of the deceased and not the ticket from the deceased, the Railway Claims Tribunal has rightly come to the conclusion that when there was no ticket available from the clothes of the deceased and only the purse and cell phone are recovered, the deceased was only a ticketless passenger and therefore, he was not a bonafide passenger. On this basis, the question of grant of compensation was refused and therefore, no fault can be found.
4.But this Court is unable to agree with the said submission made by the learned counsel for the respondent. The reasons being that firstly it is an admitted fact that on 17.02.2012 when the appellants' father, boarded the Dindigul to Madurai Passenger train at Cholavanthanan, in order to proceed to his daughter's house namely Easwari situated at Madurai, while the train reached Madurai Railway Station, had accidentally fell down from the running train and sustained grievous injuries on the head, thigh and legs http://www.judis.nic.in 8 since there was a change of track and due to the same, the train became shaky. Immediately, he was taken to Government Rajaji Hospital, Madurai through 108 Ambulance arranged by the Railway Police. The Inquest report also corroborating the said factum states that on 18.02.2012, near the signal post situated at the Northern end of Madurai Railway Station, Platform No.3, the deceased having fallen down from the train accidentally, sustained injuries and died and in respect of the above dead body of the deceased, the inquest was conducted under Section 174 Cr.P.C. All these facts clearly show that the deceased fell down from the running train inside the Madurai Railway Station.
5.Secondly, as to the conclusion arrived at by the Railway Tribunal that the deceased was not a bonafide passenger, this Court needs to refer the judgment of the Calcutta High Court reported in 2017 ACJ 2447 in the case of Bandana Misra v. Union of India in which it has been held that the initial burden of proving such fact had not been discharged. In the present case, no evidence has been produced that he did not fall down from the running train. Moreover, he fell down within the premises of the Madurai Railway Station and the same was fortified by the admitted fact that the deceased http://www.judis.nic.in 9 was shifted from Madurai Railway Station to Government Rajaji Hospital, Madurai through 108 Ambulance.
6.Thirdly, one Dr.Vanitha, MSDA, who had rendered treatment at Ward No.99, Government Rajaji Hospital, Madurai, gave information to the Madurai Railway Police Station, finding the death and for taking further action. Based on the information received through telephone from the said Dr.Vanitha, F.I.R. was registered on 18.02.2012 at about 6.30 hours. Therefore, when the claimants have rightly claimed that their father, while travelling in a train, fell down at Madurai Railway Station from the running train and died in the Government Rajaji Hospital, Madurai, as per the above ratio laid down, this Court is of the view that the Railways to prove that the deceased was not a bonafide passenger, but, there is no evidence whatsoever produced before the Railway Claims Tribunal.
7.In a similar circumstance, in the case of A.Thanikachalam and others vs. the Union of India reported in 2016 (6) CTC 820, I have held that when it is an admitted fact that both the deceased died in an untoward incident on the respective dates while travelling in the train, the onus is http://www.judis.nic.in 10 upon the Railways to prove that the deceased were not bonafide passengers. It is pertinent to extract the relevant portion of the judgment as under:
“14.In the cases on hand, as mentioned already, when it is an admitted fact that both the deceased died in an untoward incident on the respective dates while travelling in the train, the onus is on teh Railways to prove that the deceased were not bona fide pasengers, since the normal presumption is that a passenger in a train holds a valid ticket. In fact, under similare circumstances, this Court in the case of The Union of India owning Southern Railway by its General Manager, Chennai v. G.Jayalakshmi and others, 2012 (3) CTC 741, while considering an identical issue, has held as follows:-
“15. This Court in similar circumstances in the case of S.Poonkodi and others v. The Union of India, Southern Railway, 'CDJ 2007 MHC 3784, observed as hereunder:-
“16.....Moreover, if the deceased had travelled as a ticketless traveller, one wuld normally expect the Railway Authorities to have detected such ticketless traveling. When a person dies in an accident by falling down from train, it is not possible for the legal representatives to produce the ticket or valid authority http://www.judis.nic.in 11 to travel in the train. Depending upon teh facts and circumstances of a given case, the Tribunal/the Appellate Court infer about the deceased being a bona fide passenger. In the present case, facts and circumstances prima facie indicate that the deceased was a bona fide passenger, who lost his life in the Railway incident.”
8.In the another ratio laid down by the Calcutta High Court in the case of Bandana Misra v. Union of India reported in 2017 ACJ 2447, it has been clearly held that it is the duty of the Railway Authority to first give evidence that he was without a valid ticket and if such evidence is given, the onus shifts upon the claimants to prove that he was a bonafide passenger having a valid ticket. It is pertinent to extract the relevant portion of the judgment as under:
'24.The reasoning in para 5.3.4 extracted above would not relate to issue No.2 but to issue No.1. What remains is para 5.3.5, recording the ipse dixit of the presiding officer. The decision in Bandana Mondal (supra) has been aptly cited by Mr.Banerjee, which proceeded to decide the lis before it relying on the decisions of the Apex Court in Gopal Krishnaji Ketkar (supra) and Vidhyadhar (supra). Para 11 of the cited decision http://www.judis.nic.in 12 reads as follows:
“(11) We are quite conscious of the position of law that is provided in Section 106 of the Evidence Act, if a fact is within the special knowledge of a person, the burden of proving such fact is on that person and as provided in illustration (b) of that section, if a person is charged with travelling on a railway without a ticket, the burden of proving that he had a ticket is upon him. But such principle is not applicable to a case of a dead person whose dead body was found on the railway track and whose body was taken in custody by the Railway Police. In such a situation, it is the duty of the railway authority to first give evidence that he was without a valid ticket and if such evidence is given the onus shifts upon the claimants to prove that he was a bonafide passenger having a valid ticket. IN this case, as no person on behalf of the Railways has given any such evidence nor has any person come forward to disclose what articles were found with the victim, we conclude that the initial burden of proving such fact had not been discharged. We cannot lose sight of the fact that one is not entitled to enter even the platform of a railway station without having a valid platform ticket and one takes the risk of criminal prosecution by boarding a train without ticket. In such circumstances, in the absence of any evidence of the railway authority asserting absence of a valid ticket, we are of the opinion, there is no just reason for totally discarding the evidence of PW1, the mother http://www.judis.nic.in 13 of the victim, who deposed and asserted that it was she who purchased the ticket for her son, handed over the same to him and saw him off at the railway station. We have already mentioned that in cross-examination, no suggestion was even given to her denying those assertions.”
9.Even the Apex Court also in the case of Union of India (UOI) vs Rina Devi reported in 2018 (7) SCALE 274 has held that mere presence of a body on the Railway premises will not be conclusive to hold that injured or deceased was a bonafide 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 not a bonafide passenger and 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. In the present case, all the circumstances clearly show that when the deceased fell down from the running train in Madurai Railway Station, while travelling in the Passenger train, he was immediately taken to Government Rajaji Hospital, Madurai where he died due to grievous injuries sustained by him. Due to change of track, the train became shaky, http://www.judis.nic.in 14 hence, the deceased fell down from the running train and died in the Government Rajaji Hospital and the same covers under Section 123(c)(2) of the Railways Act 1989 which defines the term 'untoward incident' as above. Therefore, as held by the Calcutta High Court, it is very difficult to expect the ticket from an un-conscious person, who fell down from the running train. Hence, this Court is of the considered opinion that the deceased is the boanfide passenger.
10.Accordingly, the findings given by the Tribunal are set aside and the appeal is therefore allowed. The respondent is directed to deposit a sum of Rs.8,00,000/- along with interest at the rate of 9% per annum from the date of petition till the date of realisation within a period of four weeks from the date of receipt of a copy of this order. On such deposit, the appellants are permitted to withdraw the entire amount. No costs.
10.12.2020
Index : Yes / No
vga
http://www.judis.nic.in
15
To
1.The Railway Claims Tribunal,
Chennai.
2.The Section Officer,
V.R.Section,
High Court, Madras.
http://www.judis.nic.in
16
T.RAJA, J.
vga
C.M.A. No.267 of 2020
10.12.2020
http://www.judis.nic.in