Madras High Court
R.Janaki vs The Union Of India Owning
Author: P.T. Asha
Bench: P.T. Asha
C.M.A.No.1135 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 05.08.2022
Delivered on : 25.08.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
C.M.A.No.1135 of 2017
R.Janaki ...Appellant
Vs
The Union of India Owning
Southern Railway, rep. by its General Manager,
Chennai-600 003. ...Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 23 of
the Railways Claims Tribunal Act, against the Judgement dated
08.12.2015 and made in O.A.(II-U) 356/2014 on the file of the
Railway Claims Tribunal, Chennai Bench.
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C.M.A.No.1135 of 2017
For Appellants : Mr.S.Parthasarathy
For Respondent : Mr.M.Vijay Anand
JUDGEMENT
The applicant before the Railway Claims Tribunal, Chennai is the appellant before this Court. The appellant is aggrieved by the dismissal of her application seeking compensation for the death of her mother in an alleged Train accident.
2. It is the case of the appellant that her mother Raniammal, aged about 73 years had travelled in a Train from Chennai to Avadi and had accidentally fallen down from the running Train between Vyasarpadi and Perambur Railway Stations. The said Raniammal had sustained grievous injuries and died on the spot.
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3. The appellant had claimed a total compensation of a sum of Rs.4,00,000/- together with interest at 9% p.a. from the date of application till the date of the payment together with costs. The appellant had stated that the journey ticket had been lost and that her mother was a Cooley. The appellant had described the case as an “untoward incident”.
4. The respondent Railways had filed their reply statement, in which they had submitted that it is not the case of the injury due to falling of the Train but a case of being hit by EMU Train, while the deceased was walking along side the Perambur Railway Station. The respondent had submitted that this conclusion was arrived at after perusing the DRM's report based upon the enquiry held by the Police. 3/24 https://www.mhc.tn.gov.in/judis C.M.A.No.1135 of 2017
5. The Railways would further submit that the deceased was not a bonafide passenger as there was no ticket found on the person of the deceased. The Railways would submit that the Inquest report and final report prepared by the Police appears to be contrary to the true facts. They therefore sought for the dismissal of the application.
6. The Tribunal below had formulated three issues on perusing the pleadings on either side. The issues are as follows:
“1.Whether the deceased was a bonafide passenger as alleged?
2.Was there any untoward incident on 07.03.2014 as defined under Section 123 ( c) (2) of the Railways Act, 1989 as alleged?
3.Whether the applicant is entitled for the compensation as claimed and other relief if any?” 4/24 https://www.mhc.tn.gov.in/judis C.M.A.No.1135 of 2017
7. The appellant had examined herself as A.W.1 and Ex.A.1 to Ex.A.6 were marked on her side. On the side of the respondent, the DRM's report has been filed.
8. The Tribunal had ultimately dismissed the application by stating that the appellant herein had failed to discharge the initial burden of proving that the deceased was a bonafide passenger. Aggrieved by the said order, the applicant is before this Court.
9. Mr.S.Parthasarathy, learned counsel appearing on behalf of the appellant would submit that from the Inquest report submitted by the Perambur Railway Police, done in the presence of respectable persons around the scene of accident would clearly indicate that the accident had occurred while the deceased was travelling in a Train from Chennai towards Avadi and had accidentally fallen between 5/24 https://www.mhc.tn.gov.in/judis C.M.A.No.1135 of 2017 Vyasarpadi and Perambur Railway Stations.
10. The learned counsel would further submit that the FIR which was given by the Station Master in which it has been stated that the deceased had died on account of her being run over by the unit Train has not been proved by examining the Station Master as a witness on the side of the respondent to prove the statement made by him in the FIR.
11. The learned counsel would also draw the Court's attention to the final report submitted by the Tamil Nadu Police, where it is opined that the said Raniammal had died on account of accidentally fallen from a running Train and the injury sustained was a grievous Head injury.
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12. The learned counsel would draw the attention of the Court to the Judgement reported in (2019) 3 SCC 572 - Union of India Vs. Rina Devi, where the Hon'ble Supreme Court had observed that the mere absence of the ticket on the person of the injured or the deceased will not negative the claim that he was a bonafide passenger. The initial burden fastened on the applicant would be discharged if an affidavit with relevant facts are filed. Once the same is filed, then the burden is shifted on the Railways to prove that the person concerned is not a bonafide passenger.
13. The learned Judges had discussed the burden of proof where the body is found on Railway premises and had opined that negative onus cannot be placed on the Railways since the onus to prove that the deceased was a bonafide passenger can be discharged by producing the ticket.
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14. The learned counsel would submit that in the instant case, the appellant through her claim statement and documents filed in support of her case as also the evidence has discharged this burden and the Railways has failed to prove their case.
15. The learned counsel would also rely upon the Judgement of this Court reported in 2008 (1) TCJ 108 – Union of India Vs. G.Loganayaki and others, where the learned Judge had relied upon the Judgement of the Madhya Pradesh High Court, reported in 1993 ACJ 846 MP – Raj Kumari & another Vs. Union of India, where the learned Judges were considering the burden of proof in Railway claim cases. The observation of the learned Judges is as follows:
“(5)The main question that arises in this case is on whom the onus of proof lies in such claim cases and whether any presumption under the Evidence Act can be raised. Normally under sections 101 and 102 of the 8/24 https://www.mhc.tn.gov.in/judis C.M.A.No.1135 of 2017 Evidence Act, the burden to prove such facts, on which the legal right or liability depends, is on such person who asserts existence of these facts. But the question before us is whether the burden of proof that the deceased held a valid ticket, pass or permission during his journey, in which he died in accident can be placed on his dependants. Obviously, such burden of proof is impossible to be discharged by the dependants, who can have no means of knowledge, whether the deceased, before boarding the train, had purchased a valid ticket, pass or permission from the Railway authorities. It is likely that such a deceased passenger held a valid ticket, pass or permission, but the same is lost in the accident with the death of person and loss of his belongings, if any.
(6). The provisions of sections 66, 68, 113 and 122 of the Act do indicate that the person is deemed to be a 9/24 https://www.mhc.tn.gov.in/judis C.M.A.No.1135 of 2017 ‘passenger’ when he travels either on ticket, pass or with permission of the authorised officer of the Railways.
Section 68 contains prohibition against traveling without pass or ticket Or permission”.
16. The learned Judge had held that it would be difficult to prove whether the deceased was a bonafide passenger or not since it is the deceased who would be holding a valid ticket or pass or permission and the same is lost in the accident. Therefore, since Section 68 of the Railways Act prohibits travel without ticket, it is for the Railways Administration to prove that the deceased was not a bonafide passenger. He would also rely upon the unreported Judgement of this Court in C.M.A.No.2566 of 2017 dated 05.04.2022.
17. Per contra, Mr.M.Vijay Anand, learned counsel appearing on behalf of the respondent Railways would submit that the appellant has 10/24 https://www.mhc.tn.gov.in/judis C.M.A.No.1135 of 2017 not been able to prove that the accident had occurred on account of the fall from the Train and that the deceased was a bonafide passenger. The learned counsel would submit that the DRM's report clearly show that the deceased Raniammal had not died due to fall from the Train but she had been hit by a Train while she was walking on the track. Therefore, the deceased cannot be termed as a passenger.
18. The learned counsel would submit that the nature of injuries sustained by the deceased would also clearly show that the death was caused only on account of a hit by a Train. Had the deceased fallen of the Train, she would have sustained injuries all over her body, whereas, the Post-mortem certificate which has been marked as Ex.A.2, would describe the injuries as follows:
I.Abrasions:
(i)Reddish brown abrasion of size 6 x 3 cm seen over right side of forehead.11/24
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(ii)Reddish brown abrasion of size 3 x 1 cm seen over right side of neck.
(iii)Reddish brown abrasion of size 6 x 2 cm seen over right side of face above upper lip.
(iv)Reddish brown abrasion of size 2 x 2 and 3 x 1 cm seen over right cheek.
(v)Reddish brown abrasion of size 17 x 15 cm seen over front of right shoulder.
(vi)Reddish brown abrasion of size 3 x 2 cm seen over centre of front of upper chest.
(vii)Reddish brown abrasion of size 8 x 6 cm seen over front of right knee.
(viii)Reddish brown abrasion of size 3x1,1x1,1x1 om seen over front of middle third of right leg.
(ix)Reddish brown abrasion Of Size 6 x 3, 4 x 3, cm seen over front of left 12/24 https://www.mhc.tn.gov.in/judis C.M.A.No.1135 of 2017 lower abdomen.
(II) LACERATIONS:
(i) laceration of size 32 x 10-3-2.5 X bone deep seen over mid frontal, left parieto tempero occipital region.
(ii) laceration of size 2 x 0.5 x 0.5 cm seen over outer aspect of right side cheek.
Had she fallen of the Train her injuries would be all over the body.
19. The learned counsel would rely upon the unreported Judgement of this Court in C.M.A.No.3196 of 2019 dated 29.03.2022, where this Court dealt with the definition of “bonafide passenger”. The learned counsel would therefore submit that the order of the Tribunal below does not require any reconsideration. 13/24 https://www.mhc.tn.gov.in/judis C.M.A.No.1135 of 2017
20. Heard the learned counsels and perused the records.
21. The case of the appellant in her claim statement is that while travelling in a Train from Chennai to Avadi, the deceased Raniammal had accidentally fallen down from the running Train between Vyasarpadi and Perambur Railway Stations. The Claim statement would show that the deceased was living at No.21/5A New Colony, 2nd Main Road, Alwarthirunagar, Chennai 87. In her oral evidence, the appellant would submit that her mother was living with her at Alwarthirunagar and that she was a pension holder after the death of her father.
22. However, it is the appellant's contention in her proof affidavit that her mother would regularly go to Railway Hospital at Perambur loco carriage. On the said date, she had left from Alwarthirunagar to the Hospital at about 3 p.m. The appellant would submit that prior to 14/24 https://www.mhc.tn.gov.in/judis C.M.A.No.1135 of 2017 16.25 hours on 07.03.2014, she was informed by the Railway Police that her mother was travelling in an Electric Train and had fallen down from running Train between Vyasarpadi and Perambur Railway Stations. In her cross examination, the appellant would submit that her mother used to travel from Alwarthirunagar by road to Washermenpet and from Washermenpet she used take Train to Perambur Railway Station. It is also the appellant's case that her mother would travel using a Railway pass.
23. A perusal of Ex.A.3 Death Certificate would show that the permanent address of the deceased Raniammal was old No.131, New No.303, Solayappan Street, Chennai, and not Alwarthirunagar as stated by the appellant.
24. The FIR, Ex.A.1 would indicate that the death was on account of being run over by a unit Train. It is only thereafter that the 15/24 https://www.mhc.tn.gov.in/judis C.M.A.No.1135 of 2017 Inquest report has been changed to show that the deceased had fallen of the Train.
25. The appellant who states that her mother was in possession of Railway pass for travel has not taken any steps to produce atleast the duplicate copy of the same, to prove that the said Raniammal was a bonafide passenger. There is no document filed and neither has the appellant been able to give a convincing explanation. Infact no affidavit as contemplated under the Judgement in Rina Devi's case has been filed.
26. The appellant has in her cross examination stated that her mother was provided with a Railway pass. To prove the same, even the earlier Railway passes have not been produced. Further, the appellant has not filed any document to show that her mother was drawing pension from the Indian Railways. The appellant has also not been 16/24 https://www.mhc.tn.gov.in/judis C.M.A.No.1135 of 2017 able to establish the fact that her mother was proceeding to Perambur Railway Hospital on the ill fated day. On the contrary, in her claim statement she would submit that her mother was travelling from Chennai to Avadi and it was only during the evidence stage that the appellant has introduced the story of her mother going to the Railway Hospital.
27. The other factor that weighs in the mind of the Court is the nature of the injuries that has been sustained by the deceased. If the deceased had fallen of the Train between Vyasarpadi and Perambur stations (there is no platforms between these stations) would have resulted in injuries all over her body considering her age the same would be more severe. The Post-mortem certificate shows that the injuries are only on the head which proves the contention of the respondent / Railways that the accident was on account of the deceased being hit by a running Train. There is no explanation from the 17/24 https://www.mhc.tn.gov.in/judis C.M.A.No.1135 of 2017 appellant as to why 70 year old lady has travelled all the way from Alwarthirunagar to Washermenpet and then taken a Train to Avadi to go to the Railway Hospital at Perambur.
28. Therefore, it appears that the deceased was not travelling in a Train at the time of her death. If it is assumed that the deceased was a passenger then there is no document to prove that she had travelled as a passenger and neither is their an explanation as contemplated in the case of (2019) 3 SCC 572 - Union of India Vs. Rina Devi referred supra, regarding the reasons for the non-availability of the ticket.
29. The appellant in her cross examination would submit that her mother was the holder of Railway pass, such a pass has not been discovered during the Inquest. Therefore, the appellant has failed to prove that the deceased was a passenger. The word passenger has been defined in Section 2 (29) of the Railways Act as a person travelling 18/24 https://www.mhc.tn.gov.in/judis C.M.A.No.1135 of 2017 with valid pass or ticket.
30. Section 123 which falls within Chapter XIII deals with liability of Railway Administration for the death and injury to passengers due to accident. Section 123 ( c) describes “untoward incident” as follows:
““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 19/24 https://www.mhc.tn.gov.in/judis C.M.A.No.1135 of 2017 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.]
31. Section 124 A talks about the compensation that is payable on account of untoward incident and the explanation to Section states that passenger, which are as follows:
“124 A. Compensation on account of untoward incidents.—When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, 20/24 https://www.mhc.tn.gov.in/judis C.M.A.No.1135 of 2017 notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident:
Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to—
(a) suicide or attempted suicide by him;
(b) self-inflicted injury;
(c) his own criminal act;
(d) any act committed by him in a state of intoxication or insanity;
(e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident.21/24
https://www.mhc.tn.gov.in/judis C.M.A.No.1135 of 2017 Explanation.—For the purpose of this section, “passenger” includes—
(i) a railway servant on duty; and
(ii) a person who has purchased a valid ticket for travelling, by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.
32. Therefore, considering the above definitions, the appellant has not been able to prove that the deceased Raniammal was a passenger travelling by Train and she had died on account of fall from the Train.
33. A perusal of the Judgements relied upon by the appellant would indicate that the primary onus is on the appellant to prove that the deceased was a passenger either in the form of a ticket or in the 22/24 https://www.mhc.tn.gov.in/judis C.M.A.No.1135 of 2017 form of an affidavit narrating the circumstances. In the instant case, the initial onus itself has not been proved by the appellant. Therefore, I see no reason to disagree with the findings of the Tribunal below and consequently the Civil Miscellaneous Appeal stands dismissed. No costs.
25.08.2022 kan Index : Yes/No Speaking order/non-speaking order To The Railway Claims Tribunal, Chennai 23/24 https://www.mhc.tn.gov.in/judis C.M.A.No.1135 of 2017 P.T.ASHA, J., kan Pre-delivery order in C.M.A.No.1135 of 2017 25.08.2022 24/24 https://www.mhc.tn.gov.in/judis