Kerala High Court
Tessy Seno vs The General Manager Southern Railway on 2 May, 2025
MFA (RCT) NO.107/2014 1
2025:KER:33390
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
FRIDAY, THE 2ND DAY OF MAY 2025 / 12TH VAISAKHA, 1947
MFA (RCT) NO.107 OF 2014
ARISING OUT OF THE JUDGMENT DATED 24.07.2014 IN O.A.
(IIu)/ERS/2013/0047 OF RAILWAY CLAIMS TRIBUNAL, ERNAKULAM
BENCH
APPELLANTS/APPLICANTS:
1 TESSY SENO
AGED 48 YEARS
W/O.SENO V.J,71/3 CGO COMPLEX,
VELLAYANI P.O,POONKULAM,
THIRUVANANTHAPURAM PIN 695 522
2 JACKWIN SENO
AGED 22 YEARS
S/O.SENO V.J,71/3 CGO COMPLEX,
VELLAYANI P.O., POONKULAM,
THIRUVANANTHAPURAM PIN 695 522
3 BENADICT SENO
AGED 18 YEARS
S/O.SENO V.J,71/3 CGO COMPLEX,
VELLAYANI P.O., POONKULAM,
THIRUVANANTHAPURAM PIN 695 522
BY ADVS.
SRI.P.SAMSUDIN
SRI.K.C.ANTONY MATHEW
SRI.JITHIN LUKOSE
MFA (RCT) NO.107/2014 2
2025:KER:33390
RESPONDENT/RESPONDENT:
THE GENERAL MANAGER
SOUTHERN RAILWAY CHENNAI 600001
BY ADVS.
SRI.JOHN MATHEW, SC, RAILWAYS
SRI.M.S.IMTHIYAZ AHAMMED, SC, RAILWAYS
SRI.S.BIJU, SCGC
THIS MFA (RCT) HAVING BEEN FINALLY HEARD ON
25.02.2025, THE COURT ON 02.05.2025 DELIVERED THE
FOLLOWING:
MFA (RCT) NO.107/2014 3
2025:KER:33390
JUDGMENT
Dated this the 02nd day of May, 2025 This appeal is filed challenging the judgment dated 24.07.2014 in O.A.(IIu)/ERS/2013/0047 of the Railway Claims Tribunal (RCT), Ernakulam Bench. Appellants were the applicants before the RCT. Respondent was the respondent therein. Parties are referred to according to their status before the RCT.
2. Applicant's case in brief is as follows: They are the wife and children of late Seno V.J., who died in an untoward incident that occurred on 29.07.2012 at 7.40 P.M. While travelling in Thiruvananthapuram - Chennai Mail bearing train number 12624 from Ernakulam Town Station to Aluva, he somehow fell from the train at the north end of the platform. His body was found nearly 25 meters north of the north end of Ernakulam Town Railway Station. The deceased was a military man. After retirement, he was serving as an accountant in the Accountant General's office at Thiruvananthapuram. He was a bona fide passenger with a 2 nd class MFA (RCT) NO.107/2014 4 2025:KER:33390 ordinary ticket, which could not be recovered since the body was mutilated and the dresses were torn. The applicants claimed Rs.4,00,000/- as compensation for the untoward incident.
3. The RCT framed four issues and the parties proceeded to tender evidence. The applicants examined PW1 and marked Exts.A1 to A11. Respondents examined RW1 and marked Exts.R1 to R3. After hearing both sides, the RCT concluded that the applicants had failed to produce any material to arrive at the conclusion that the victim was a bona fide passenger in the train in question and that the incident was an untoward incident as defined under Section 123 (c) of the Railways Act, 1989. The applicants had not been able to prove that the victim died on account of a fall from the train. The application was thus dismissed. Aggrieved by the said judgment of the RCT, this appeal has been preferred by the applicants.
4. Heard Sri.P.Samsudin, Advocate for the appellants/ applicants and Sri.S.Biju, Advocate, SCGC for the respondent railways.
5. The learned counsel for the applicants contended that the judgment of the RCT is perverse, illegal and arbitrary. The same had MFA (RCT) NO.107/2014 5 2025:KER:33390 been rendered by overlooking the law as well as the facts. The learned counsel contends that there were specific factual inputs, which had been brought out in evidence tendered by both sides which was not taken into consideration or discussed by the Tribunal. Reliance is placed on the deposition of PW1 who had stated that he had seen the victim being dragged by the train while moving from the platform. It had also been stated that the victim was between the handle of the compartment and the platform. The said evidence tendered by the witness categorically proves that the victim was a passenger in the train and that he fell down while trying to board the train. This aspect was overlooked by the RCT. The RCT erred in construing the FIR as settling that the death was due to 'train hit'. It is submitted that the said FIR had only reported the incident and cause of death. Death due to 'train hit' need not mean that the victim was not a passenger. Insofar as PW1, who is a witness to the incident, had clearly deposed as to how the incident had occurred, the contradicting interpretation given to the FIR is incorrect. The RCT had failed to appreciate the scene mahazar which was authentic and corroborated the statement's deposition made by the witness. The MFA (RCT) NO.107/2014 6 2025:KER:33390 reason stated by the RCT for disbelieving PW1's evidence related to the distance pointed out in the DRM's report regarding the platform and place where the body was found. The RCT ought to have found that the scene mahazar is more authentic than the final report or any other report in identifying the spot of the incident. The RCT had overlooked the testimony of RW1 that he saw a group of people at a distance of 25 mtrs. northward from the north end of the platform. The RCT overlooked the inquest report which had mentioned that the persons who were questioned had specifically stated that the deceased would have died from a fall from the train. The investigating officer had specifically stated that he does not doubt or suspect any foul play in the matter. None of the specifications in Section 124 A(a) and (d) of the Railways Act, 1989 is seen attracted in the facts and suicide or attempted suicide, intoxication or insanity etc. had been clearly ruled out by the evidence that had been produced. The post-mortem report clearly corroborates the version given by PW1 regarding the manner in which the accident had occurred. It had also been specifically found in the final report that the victim had no financial liabilities or family problems, so as to drive MFA (RCT) NO.107/2014 7 2025:KER:33390 him to commit suicide and that the same would only have been an accidental death. As regards the ticket of the deceased, the same could not be recovered since the body had been mutilated and dragged by the train, and his dresses were torn away. The possibility of recovering a ticket from such a dead body was very remote. Further, the dead body had been handled by the people present at the spot, the police, attendants of the medical wing, etc. In the normal course, there was every chance of loss of the travel ticket by the intervention of third persons. Reliance was placed by the learned counsel on the dictum in Union of India v. Parameswaran Pillai [2012 (4) KLT SN 25 (C. No. 25)] wherein it had been held that the passenger is to be presumed as bonafide passenger unless it is shown otherwise. In Union of India v. Leelamma [2009 (1) KLT 914], it has been held that merely because the ticket is lost during the accident, the passenger cannot be labelled as not a bona fide passenger and the burden in this respect lies on the railways. The learned Counsel appearing for the applicants submitted that an affidavit dated 10.07.2013 had been filed stating the relevant facts and meeting all the mandates of law. Hence as per the settled law, MFA (RCT) NO.107/2014 8 2025:KER:33390 the burden to prove that the victim was not a bona fide passenger had shifted on to the railways. The said burden was never discharged by the respondent and this aspect was overlooked by the RCT. The RCT had without verifying the scene mahazar, and the statements which are favourable to the applicants in the inquest report, final report, and post-mortem report, as also the statements of PW1 and admissions by RW1, dismissed the application. Reliance is also placed by the learned counsel on the judgment of this Court in Safiya and others v. Union of India (MFA No.150 of 2008 dated 22.07.2013), wherein it was held that the finding of the RCT that had an incident as alleged taken place, the co-passengers would have reported the incident does not have a legal and sound basis and cannot be sustained. Holding thus this Court had in the said case remanded the matter back to the RCT for fresh consideration. The learned counsel, based on the said dictum, submits that on the same ratio, the judgment of the RCT impugned in this MFA is also merits a remand and fresh consideration since there has been a total non consideration of the factual aspects by the RCT as well as non application of mind to the legal norms governing the subject. MFA (RCT) NO.107/2014 9
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6. The learned SCGC appearing for the railways, vehemently contended that the order of the RCT does not require any interference as it has been rendered after proper appreciation of the facts and law. The same cannot be termed as perverse or erroneous as it reveals a detailed appreciation of all the relevant aspects and provides reasoning for the decision that has been arrived at. As regards the affidavit that has been filed by the wife of the deceased and the contention that burden to prove that the deceased was not a bonafide passenger had shifted on to the railway by the filing of the same, it is contended that the affidavit filed is bereft of the essential details and had been filed merely for the sake of filing an affidavit. Only an affidavit which reveals the essential factual facets to prove that the person was a bonafide passenger could merit the contention regarding shifting of burden. Mere filing of an affidavit without such valid and basic details would not shift the burden on to the railways. It is submitted by the learned counsel for the respondent that the purpose and object of the travel of the deceased should have been specifically stated in the affidavit and it should also have stated the circumstances that led the deceased to travel in the train. It also MFA (RCT) NO.107/2014 10 2025:KER:33390 ought to have stated essential details like the place of boarding, destination, the purpose of travel, the details of the train, the reason for choosing the transport etc. The affidavit that has been filed is cryptic and evasive. The same has been filed only to meet the purpose of filing an affidavit. The learned counsel also contends that the injuries do not reveal that the deceased had fallen down from the train. The injury that was noted was on the head and the same would not have occurred by falling down from the train. The nature of the injury only pointed towards the possibility of a hit by the train and being thrown off due to such impact. There are more than one probabilities and none of them reveal that the deceased could have been a passenger on the train. There is no evidence to show that the deceased was a bona fide passenger. No complaint had been filed to show that the belongings of the deceased had been lost. The learned SCGC thus prayed that the appeal may be dismissed.
7. I have heard both sides in detail. The principal finding of the RCT while dismissing the application was that no evidence had been produced to arrive at a conclusion that the victim was a bona fide passenger in the train. It was concluded by the RCT that the MFA (RCT) NO.107/2014 11 2025:KER:33390 applicants had not been able to prove with substantiating evidence that the victim actually travelled in the train. The RCT opined that "it is unrealistic to expect the railways to prove the incident of hit and run cases over the length of kilometers across the country" and concluded that the primary onus is upon the applicants to prove their claim. The RCT had by referring to a dictum laid down by the High Court of Delhi in Shahajad v. Union of India [(2014) SCC OnLine Del 127)] held that there is no provision in the Railways Act or the Railway Claims Tribunal Act, nor any ratio of any judgment of the Hon'ble Supreme Court that mandates that the initial onus in a claim petition is not on the applicants, but on the railways. Relying on the said judgment, the RCT concluded that no evidence has been made available by the applicants to establish that the victim was a bona fide passenger.
8. The question as to what circumstances would justify a victim of a railway accident to be termed as bonafide passenger in the absence of travel/ journey tickets is no longer re integra. This Court had after a detailed survey of the precedents on the point, lucidly encapsulated the law on the point in Girija v. Union of India [MFA MFA (RCT) NO.107/2014 12 2025:KER:33390 (RCT) No.96 of 2014 of this Court dated 26.02.2024]. In the said case, the claimant had filed an affidavit before the RCT wherein it is stated that her son was holding a general compartment ticket for the journey from Quilandy to Vadakara, which had been lost at the time of the accident, and that she was not in a position to produce the ticket. She also requested that the production of the ticket be dispensed with. This Court had held that the said affidavit is sufficient to discharge the initial burden on the part of the claimant especially since the respondents had not chosen to let in any contra evidence. In Girija (supra) this Court had taken note of the judgment of the High Court of Delhi in Shahajad (supra) and had opined that the legal position has been to a certain extent set at rest by the Hon'ble Supreme Court in Union of India v. Rina Devi [2018 (2) KLT 1060] wherein various conflicting views of different High Courts had been examined and it had been concluded by the Hon'ble Supreme Court that though the mere presence of a body on the railway premises will not be conclusive to hold that the injured or the deceased was a bona fide passenger, the mere absence of a ticket with such injured or deceased will not negative the claim that he was MFA (RCT) NO.107/2014 13 2025:KER:33390 a bona fide passenger. The Hon'ble Supreme Court had therein held that there is an initial burden on the claimant which could be discharged by filing an affidavit of the relevant facts, and the burden will then shift onto the railways, and the issue can be decided on the facts shown and on the attending circumstances. The Hon'ble Supreme Court has also held that the approach should be to deal on a case-by-case basis based on the facts proved.
9. I note that the filing of the relevant affidavit before the Tribunal by the 1st applicant, wife of the deceased, is not disputed by the respondent. The contention put forth by the learned counsel for the railway is regarding insufficiency of the said affidavit, so as to enable the same to be termed as one that discharges initial burden placed on the applicants to prove that the victim was a bona fide passenger. It is seen from the judgment impugned that the RCT has not endeavoured to do such an exercise of appreciating the worth and value of the affidavit nor have it chosen to discuss the contents of the same or the relevancy or sufficiency of the same when it comes to the question of shifting of the burden. The said affidavit does not even find mention anywhere in the impugned judgment of MFA (RCT) NO.107/2014 14 2025:KER:33390 the RCT. The conclusion arrived at by the RCT that the applicants are not entitled to any relief in the absence of proof or evidence that the victim travelled in a train and died on account of injuries sustained in an untoward incident has been arrived at overlooking the affidavit as well as the relevant law as laid down by this Court in Girija's case (supra) which followed Rina Devi (supra). Hence I find merit in the contention put forth by the counsel for the applicants that the judgment is perverse and arbitrary thus making it fit to be set aside and remanded back for fresh consideration.
10. In view of the above, the judgment dated 24.07.2014 in O.A. (II u)/ERS/2013/0047 of the Railway Claims Tribunal (RCT), Ernakulam Bench is hereby set aside. The case is remanded back to the said Tribunal for fresh consideration and disposal in accordance with law and the settled precedent as discussed above after hearing the parties based on the evidence presently available on record.
MFA (RCT) is allowed.
Sd/-
SYAM KUMAR V.M. JUDGE csl