Kerala High Court
Geetha. P vs Union Of India
Bench: K.Harilal, P.Somarajan
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
MONDAY,THE 17TH DAYOF JULY 2017/26TH ASHADHA, 1939
MFA.No. 73 of 2014 (C)
AGAINST THE JUDGMENT DATED 3.7.2014 IN O.A.(llu)ERS/2013/0084 ON THE FILES
OF THE RAILWAY CLAIMS TRIBUNAL, ERNAKULAM.
APPELLANTS/APPLICANTS:
1. GEETHA. P., W/O.LATE R.RAJAN, AGED 43 YEARS,
PARUTHIKKATU, CHELAKKARA P. O., CHELAKKARA VILLAGE,
CHELAKKARA TALUK, THRISSUR DIST,PIN-680 586.
2. GREESHMA .R., AGED 16 YEARS, (MINOR)
D/O.LATE R. RAJAN, REP. BY MOTHER IST APPELLANT
GEETHA P ,RESIDING AT -DO- -DO-
3. RAGESH. R., AGED 9 YEARS, (MINOR),
S/O.LATE RAJAN, REP.BY MOTHER IST APPELLANT
GEETHA P ,RESIDING AT -DO- -DO-
4. U. RAMAN NAIR, AGED 78 YEARS,
S/O.VELU NAIR, RESIDING AT .-DO- -DO-
5. THANKAM, W/O.RAMAN NAIR, AGED 75 YEARS,
RESIDING AT -DO- -DO-
BY ADVS.SRI.V.K.BALACHANDRAN
SMT.S.LEKSHMI RAJAN
RESPONDENT/RESPONDENT:
UNION OF INDIA
REPRESENTED BY THE GENERAL MANAGER,
SOUTHERN RAILWAY,CHENNAI-600 001.
BY ADV. ADV.P.A.RAZIYA(BY ORDER)
BY ADV. SMT.REZIYA.P.A.,SC, RAILWAYS
BY ADV. SRI.P.V.SANTHOSH JOSE, SC, RAILWAYS
BY ADV. SRI.C.S.DIAS,SC, RAILWAYS
THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON
17.07.2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K. Harilal & P. Somarajan, JJ.
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M.F.A. No.73 of 2014 (C)
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Dated this the 17th day of July, 2017
JUDGMENT
Harilal, J.
The appellants are the dependants of deceased Rajan, who died in an untoward incident occurred in the railway track. The applicants approached the Railway Claims Tribunal, alleging that on 25.7.2013, the said Rajan travelled in a train with a valid journey ticket and during the course of journey, accidentally he fell down at some point of time before 2.50 a.m. at night somewhere at Chullimada-Kanjikkodu 'A' line railway track at Mayappapallam and died due to serious head injuries sustained from the falling from the train. In order to substantiate the said contention, the applicants have produced Exts.A1 to A7.
2. But the respondent contended that, according to the statutory investigation, the deceased was not a bona fide passenger and the train hit him, while he was crossing the M.F.A. No.73 of 2014 (C) :: 2 ::
track in the midnight. It is also contended that it is reported by Sri.Ramachandran, Night Patrolman, that he found a male dead body, aged about 40 years, lying by the side of the track between Chullimada-Kanjikode 'A' line Km.519/6-8. Further, it was contended that if the deceased had fallen down from the train, as alleged by the applicants, then the incident would have been reported by the co-passengers to the next railway station master and even chain pulling by passengers cannot be ruled out. However, no such chain pulling or incident had been reported on the alleged date of incident. Therefore, the cause of accident may be other than fall from the train and will not come under Section 123(c)(2) of the Railways Act. In order to substantiate the said contention, the only available document is Ext.R1, the report of the DRM.
3. After considering the rival pleas and the documents in support of their pleas, the Tribunal found that the deceased was not a bona fide passenger in any train and that the applicants failed to establish that the victim fell down from the train, as contended by them.
M.F.A. No.73 of 2014 (C)
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4. Heard the learned counsel for the appellants and the learned counsel for the respondent.
5. Going by the impugned judgment, it is seen that the Tribunal has rejected the application on the basis of the report of the DRM only. Even though the police conducted an investigation and filed Ext.A6 final report, the Tribunal has not considered the said final report made by the police, after due enquiry contemplated under the Code of Criminal Procedure, before the concerned Magistrate Court. Going by the DRM report, it is seen that the said report also refers to Ext.A6 final report filed by the police. The outcome of the police investigation establishes that the deceased Rajan had travelled in a train from Coimbatore to Palakkad and before 2.50 hours on the date when the train was passing through the above spot, the deceased slipped down from the train, injured seriously and died consequently. It can be presumed that the said final report has been filed after due enquiry contemplated under the Code of Criminal Procedure. But the Tribunal had M.F.A. No.73 of 2014 (C) :: 4 ::
lost sight on the said report as to the cause of accident. It is pertinent to note that either DRM or any officer under him, who participated in the investigation, has not been examined in evidence to substantiate the stand taken in defense by the Railway. We have meticulously gone through the postmortem report and the postmortem report shows that the said Rajan died due to head injury. Absolutely, there is no evidence to show that the said Rajan crossed the track and, in that course, the train hit on him, as suspected by the respondent.
6. As regards the finding of the Tribunal that he was not a bona fide passenger, the decision rendered by the Delhi High Court in Shahajad & Others v. Union of India (2014) ACC
397) assumes significance under Section 11(c). In view of the evidence available on record, we find that the Tribunal has not considered the evidence on record in its correct perspective. The finding of the Tribunal is not supported by either oral or documentary evidence other than the DRM report and DRM report was not proved in evidence as required under law. In M.F.A. No.73 of 2014 (C) :: 5 ::
the above view, we find that the application requires to be reconsidered by the Tribunal afresh, after affording an opportunity to both the parties to adduce further evidence. Consequently, the impugned judgment is set aside.
In the result, the Original Application is remitted to the Tribunal and the Tribunal shall consider and pass fresh orders, within a period of three months from the date of receipt of a copy of this judgment, after affording an opportunity to both the parties to adduce further evidence. The parties shall appear before the Tribunal on 16.8.2017.
K. Harilal Judge P.Somarajan Judge ahz/