Karnataka High Court
Sri. P. Venkatesh Murthy vs The Union Of India on 17 July, 2020
Equivalent citations: AIRONLINE 2020 KAR 1496, 2020 (3) AKR 524
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17th DAY OF JULY, 2020
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO.5210 OF 2014
BETWEEN:
1. SRI P. VENKATESH MURTHY
S/O.LATE S.A.PADMANABHAIAH
MAJOR
2. DR.S.V.NIKHIL
S/O.SRI S.P.VENKATESH MURTHY
MAJOR
REP. BY GPA HOLDER-APPELLANT NO.1
3. MS.S.V.KATHYAYINI
D/O.S.P.VENKATESH MURTHY
MAJOR
REP. BY GPA HOLDER-APPELLANT NO.1
ALL ARE RESIDING AT NO.963/1
UPSTAIRS, SRI GANESH NILAYA
NEW KHANTHARAJ URS ROAD
LAXMIPURAM
MYSURU-570 004 ... APPELLANTS
(BY SRI VENKATA NARAYANA FOR
SRI MADHUKAR DESHPANDE, ADVOCATES)
AND:
THE UNION OF INDIA
REP. BY ITS
GENERAL MANAGER
SOUTH WESTERN RAILWAY
HUBLI-580 020 ... RESPONDENT
(BY SATISH KUMAR N., ADVOCATE)
***
2
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 23(1) OF THE RAILWAY CLAIMS
TRIBUNAL ACT, 1987 PRAYING TO SET ASIDE THE
JUDGMENT DATED 24.04.2014 PASSED BY THE RAILWAY
CLAIMS TRIBUNAL, BENGALURU BENCH, BENGALURU IN
O.A.II U 43/2011 AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
ON 25.06.2020 AND COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The present appeal is preferred by the applicants against the judgment dated 24.04.2014 passed by the Railway Claims Tribunal (for short 'the Tribunal'), Bengaluru Bench, Bengaluru, dismissing the claim application.
2. Facts of the case are as under:
An application came to be filed under Section 16 of the Railway Claims Tribunal Act, 1987 read with Section 124A of the Railways Act, 1989 (for short 'the Act') seeking compensation of Rs.4,00,000/- for the death of Smt.Bhagyalakshmi (hereinafter referred to as 'the deceased') who is said to have died in an untoward incident occurred on 04.03.2010. It is the case of the applicants that on 04.03.2010, the deceased was traveling from 3 Mysuru to Ananthapur and accordingly, the husband of the deceased-S.P.Venkatesh Murthy accompanied her to the Railway Station, purchased the journey ticket and handed over the same to her and made her to sit in the ladies compartment. The deceased was carrying a bag along with a mobile phone bearing No.9448134820 and boarded Mysuru Jaipur Express train at Mysuru to go to Ananthapur.
The husband of the deceased-S.P.Venkatesh Murthy after getting her boarded into the ladies compartment informed her to call him back after she reaches Ananthapur and since, he did not get call from her till 4.30 p.m., he called his sister, who was at Ananthapur. When he waited for nearly one hour, he thought there would be delay of arrival of train at Ananthapur. Since, he did not receive any information regarding his wife reaching Ananthapur, again he called his brother-in-law to enquire about the arrival of his wife at Ananthapur as she would have gone to her parents house. Thereafter, the husband of the deceased instructed his brother-in-law to go to Ananthpur Railway Station to enquire about the arrival of the said train and he came to know that Mysuru-Ananthapur train left at 5.30 itself. Since the deceased had not reached Ananthapur, 4 her brother lodged a complaint to RPF/Ananthapur. On the same day i.e. on 04.03.2010, the husband of the deceased lodged a complaint to RPF/Mysuru and despite making efforts, they were not able to trace the whereabouts of the deceased.
3. On 06.03.2010, the brother of Smt.Bhagyalakshmi, the deceased - Dr.K.Ramachandra Rao informed the husband of the deceased that her dead body was located near Doddaballapura and as the husband of the deceased was a cardiac patient, he did not go to the spot. The post mortem was conducted on the deceased at Government Hospital, Doddaballapura and thereafter, the applicants who are the husband and children of the deceased filed the claim application before the Tribunal seeking for compensation due to the death of the deceased in an untoward incident.
4. The respondent herein-South Western Railway has filed the reply statement and denied all the allegations and averments made in the application and also prayed for dismissal of the application on the ground that the claim does not come under the ambit of Section 123(c) or Section 5 124A of the Act. The respondent also took a plea that it is a case of-
i) "Volenti non fit injuria", damage suffered by consent case of action and "Nullus commodum capere protest de injuria sua propria" i.e. no man can take advantage of his own wrong.
ii) That the deceased was not a bona fide passenger. The ticket mentioned in para-7 of the application as 2nd class general is false and baseless.
iii) That the incident as alleged in the application had
not occurred in the manner narrated and
moreover, if the incident as alleged had occurred in the manner stated in the application, the alleged fall from train by the deceased, would not have gone unnoticed by Railway authorities or public for almost two days from the date of alleged journey i.e. on 04.03.2010.
iv) It is also a defence taken by the respondent that the deceased did not have a journey ticket in her possession and no journey ticket was possessed from the deceased.
v) The case made out by the applicants is not one of untoward incident or fall from the train rather it is a case of foul play and suicide.
vi) It is also pleaded by the respondent that the action of the deceased is an offence under Section 156 of the Act. Even assuming that the 6 deceased had traveled in the train, the alleged incident would not have occurred, but the same could be due to the deceased recklessly, irresponsibly traveling by standing or sitting on the footboard of the moving train.
5. The respondent, on the basis of the above contention and defence before the Tribunal, took up the plea that for the deliberate/intentional act of the deceased, the Railway Authority cannot be fastened with liability and the alleged incident would be squarely covered under the exception/proviso to Section 124A of the Act, namely (b) self-inflicted injury; (c) his own criminal act.
6. On the basis of the aforesaid pleadings of the applicants and the respondent, the Tribunal framed issues and the applicants examined applicant No.1 as AW.1, who is the husband of the deceased and got marked Exs.A1 to A19. The respondent examined Dr.M.Ashwath Narayana as RW.1, who is the Medical Officer, Government Hospital, Doddaballapura and got marked DRM's report as Ex.R1.
7. After hearing the parties and recording the evidence, the Tribunal came to the conclusion that the 7 applicants did not make out a case and dismissed the claim application of the applicants.
8. Being aggrieved by the judgment passed by the Tribunal, the applicants are in appeal before this Court challenging the legality and correctness of the said judgment.
9. I have heard Sri Venkata Narayana, learned counsel for the appellants, who appeared before the Court and Sri Satish Kumar N., learned counsel for the respondent through Video Conference.
10. Learned counsel for the appellants contends that the Tribunal has grossly erred in dismissing the claim of the appellants. The Tribunal ought to have noticed that the deceased was a bona fide passenger traveling from Mysuru to Ananthapur and died due to accidental falling from the train which amounts to untoward incident. The 'untoward incident' is covered under Section 124A of the Act and the respondent cannot claim that there was no fault on the part of the Railways or that there was a contributory negligence by the deceased. The enactment itself is a beneficial piece of legislation, liberal interpretation is 8 required to be given and not a narrow one as decided by the Tribunal. If there are two possible interpretations, then the object of the Act is to give benefit to the person for whom the enactment is made and accordingly, the interpretation beneficial to the claimants has to be preferred.
11. It is further contended by the learned counsel for the appellants that Section 124A of the Act lays down strict liability in case of railway accidents and that the present case does not come within the exception provided in the proviso to Section 124A of the Act. The Tribunal has opined that there was no fault on the part of the Railways and has attributed the negligence on the deceased, which is a total misconception and misunderstanding of the enactment and the same is required to be rejected. The Tribunal has discarded the evidence of AW.1 merely because he did not go to the spot and the body was recovered after two days, which would not amount to the deceased not being a bona fide passenger. The finding of the Tribunal that the deceased possessed a mobile phone bearing No. 9448134820 and non calling to the said phone by the husband and the brother of the deceased leads to a doubt 9 on the death of the deceased during her travel, is erroneous and not sustainable in law.
12. It is further contended by the learned counsel for the appellants that the finding of the Tribunal with regard to the deceased being run over by an unknown train, is nothing else than a conjecture and guess work and the Post Mortem report of the Doctor has been ignored by the Tribunal. The finding in the DRM's report regarding therebeing no eye witness and the co-passengers not pulling an alarm chain to stop the train or loco pilot stopping the train would establish that the deceased was not a bona fide passenger in the train, is erroneous. Based on these grounds, the observations and finding of the Tribunal are contrary to the facts and circumstances of the case and to the well established principles of law.
13. Learned counsel for the appellants relied on the judgments in the cases of Union of India v. Rina Devi reported in (2019)3 SCC 572 and Rajanna v. Union of India reported in 2020 SCC OnLine Bom 372.
14. Per contra, learned counsel for the respondent, in an erudite manner, vehemently contended that the 10 beneficial legislation drafted by the parliament is misutilised by the appellants herein to make a false claim to enrich themselves and the present case is a foul play and suicide and not a case of fall from the train, which could come within the definition of untoward incident as contemplated under Section 124A of the Act. He seriously contends that there is no piece of evidence and truth in the claim made by the appellants herein, as the appellants have not produced any ticket and neither have they led in any evidence of a co-passengers to show that the deceased traveled from Mysuru to Ananthapur. He also contends that it is an admitted fact that there is no journey ticket found or recovered from the person or bag/luggage of the deceased.
15. It is further contended by the learned counsel for the respondent that the incident has occurred on 04.03.2010 and the body was recovered on 06.03.2010 near the track at KM 39/700-800 between DBU-ORH and that more than 20 to 30 trains would have passed and it clearly established as to whether the deceased was traveling in the train and accidentally fell from the train during her journey. He further contends that even if she had traveled, she could have fallen from the train due to her 11 negligent/irresponsible act of traveling by standing or sitting on the footboard of the moving train. Therefore, her act would clearly come within the proviso to Section 124A of the Act, which would be suicide by the deceased, a self- inflicted injury or her own criminal act. Therefore, he vehemently contends that in view of the present facts of the case impugned judgment does not call for any interference by the Tribunal. It is a well reasoned order considering the materials on record and the evidence led in by the parties.
16. Having heard the learned counsel for the appellants and respondent, the points for determination before this Court would be-
"(i) Whether the deceased was a bona fide passenger and died due to an untoward incident while traveling in a train from Mysuru to Ananthapur?
(ii) Whether the applicants are entitled for compensation due to the death of the deceased in an untoward incident?"
17. It is seen from the records that AW.1 has filed his affidavit evidence and got marked Exs.A1 to A19. AW.1 has clearly stated in his affidavit which is extracted by the 12 Tribunal, wherein he has squarely stated that he had accompanied his wife to Mysuru Railway Station, purchased the ticket and handed over the same to the deceased-wife and she got into ladies compartment. The said witness has narrated the entire sequence of events as to how he left the house along with his wife to the Railway Station, purchased the ticket and boarded the train and informed her to call him as soon as the train reaches Ananthapur, which is the destination and since he did not get a call, he called up his sister who was at Ananthpur and as he did not receive any information, he called up his brother-in-law to enquire about the arrival of his wife. It is an important aspect to note that since AW.1 had not received the confirmation of his wife reaching Ananthapur, he lodged the written complaint to RPF/Mysuru on the same day i.e. on 04.03.2010 and the brother-in-law of AW.1 also lodged the missing complaint to the RPF/ Ananthapur.
18. It is only on 06.03.2010, the husband of the deceased received an information through his brother-in- law regarding the dead body of the deceased being found lying on the track at KM 39/700-800 between DBU-ORH, 13 which was informed by the authorities of the Railways. Therefore, the body of the deceased being located near track at KM 39/700-800 between DBU-ORH, is not in dispute. The information regarding the unknown female body, aged about 40 years lying on the track, was sent by the Station Master, Doddaballapura to the Assistant Sub- Inspector, Doddaballapura as per Ex.A4 stating that at 09.00 hours on 06.03.2010, Keyman/Gang No.1- Krishnappa reported that one female body, aged about 40 years lying on track at KM 39/700-800 between DBU-ORH and to take necessary action. Therefore, the body being found on the track of the Railway precincts are not disputed. Now, what has to be considered is - whether the deceased was a bona fide passenger traveling in the train from Mysuru to Ananthapur and died due to an accidental fall from the train before reaching her destination.
19. It seen from the records and the affidavit of AW.1 that the deceased had boarded the train at Mysuru in Mysuru-Jaipur express to travel to Ananthapur. The question i.e. raised by the respondent herein is that whether the deceased could have committed suicide or may have fallen from the train due to her recklessness and 14 irresponsibility in traveling by standing or sitting on the footboard of a moving train?
20. It is no doubt true that there are no eye witness to the incident and also that none of the co-passengers of the deceased were examined by the appellants to corroborate the statement of AW.1. But this fact alone will not negative the claim of the appellants that the deceased traveled from Mysuru to Ananthapur. The appellants have produced Ex.A8 which is the statement of Dr.K.Ramachandra Rao, who is none other than the brother-in-law of S.P.Venaktesh Murthy. In his statement, it is stated that when he did not get information with regard to the deceased having arrived, he went to RPF in Railway Station and enquired through phone with the Officers whether the train has reached Gunakal from Ananthapur and therefore, they said that after it reaches, they will search in ladies coach through their staff and when the train reached Guntakal, he was informed that the Police/RPF searched in Guntakal Station in the ladies coach and only one luggage bag was found and that no lady was found. He further informed by RPF/Police to take bag of the deceased. Accordingly, Dr.K.Ramachandra Rao 15 went to Guntakal Railway Station and obtained the luggage from the Station Master after identifying that the same belongs to the deceased. It is further stated by Dr.K.Ramachandra Rao that while the deceased was traveling from Mysuru to Ananthapur, she had gone to the wash basin to wash her hands in the moving train and due to sudden jerk by the train, she lost balance and accidentally fallen from the train and died. The luggage of the deceased was collected by the RPF/Police from the ladies compartment and handed over to the Station Master at Guntakal Railway Station which in turn was handed over after identification to Dr.K.Ramachandra Rao-the brother- in-law of AW.1, which is proof of the fact that the deceased had traveled as a passenger from Mysuru to Ananthapur. Therefore, the question of the deceased being a passenger, cannot be ruled out and it is squarely covered by the definition incorporated under Section 124A of the Act, wherein it is clearly stated that if any passenger suffers any injury or death due to the untoward incident, he shall be liable for compensation to such an accident as may be prescribed and the explanation given in the said Section which reads thus:
16
"124A.....................
Explanation.──For the purposes of this
section, "passenger" includes──
(i) a railway servant on duty; and
(ii) a person who has purchased a valid ticket
for traveling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident."
Under these circumstance, the definition of "passenger" has been very broadly defined to include a person who is traveling by a train and who becomes a victim of an untoward incident.
21. The next question raised by the respondent/ Railways is that there was no valid ticket found near the body or a person, the deceased or in her bag and hence, she cannot be called as a valid passenger because she was not carrying the valid ticket to travel in the train. Since she was not a passenger with a valid ticket, she would not come within the definition of 'passenger' under Section 124A of the Act. With regard to this aspect, there are catena of judgments of the Hon'ble Supreme Court, wherein the Courts have held that onus to prove that she was a ticketless traveler was on the respondent-Railways. 17 In this case, the affidavit of the husband of the deceased AW.1 has not been controverted or dislodged to the effect that he has not purchased the ticket and that he had not put her to the ladies compartment and that she has not boarded the train. It is also necessary to note that presence of the body of the deceased in the precincts of the Railways along with the luggage of the deceased having been recovered by the RPF/Police at Guntakal Railway Station and the same being handed over by the Station Master to the brother-in-law of AW.1 goes to prove that the deceased had traveled as a bona fide passenger in the train from Mysuru to Ananthapur.
22. There could have been situation that the deceased may have misplaced the Railway ticket while she fell from the moving train or it could have been taken away by somebody while her luggage was handed over to the RPF/Railway Station Master. This legal position and the observation made herein are fortified by the judgment of the Hon'ble Apex Court in the case of Union of India v. Rina Devi reported in AIR 2018 SC 2362, wherein it is held at paragraph-17.4 as under:
18
"17.4. 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."
Therefore, the Hon'ble Apex Court has made it clear that the law has been laid down in the case of Rina Devi (supra), wherein it is held that a 'particular case' and so also in the present case, not only the body was found within the precincts of Railway premises but also the husband of the deceased has filed an affidavit to state that his wife traveled from Mysuru to Ananthapur and the fact that the luggage of the deceased found by the RPF/Police from the ladies compartment and the same was procured and handed over to the Station Master at Guntakal Railway 19 Station, is the proof of the fact that the deceased was a bona fide passenger, who traveled from Mysuru to Ananthapur.
23. The other contention raised by the learned counsel for the respondent-Railways is that the death of the deceased is due to self inflicted injury or may also be an attempt to commit suicide. The respondent was not able to produce any material to show the Tribunal or this Court that the death of the deceased has been caused due to her own act, which would amount to suicide or self inflicted injury, which would come within the exception of Section 124A of the Act to deprive the appellants of claiming the compensation.
24. Having considered the above set of defence and contention urged by the learned counsel for the respondent, it is apparent on the face of the record that the deceased was a bona fide passenger, who boarded the train from Mysuru to Ananthapur and met with an untoward incident which would squarely come within the definition of Section 124A of the Act. It is also necessary to mention here that the Act has been enacted by the Parliament as a 20 beneficial Legislation and when any enactment is made as a beneficial Legislation, it is made with an intent to benefit the aggrieved and accordingly, if all the acts are falling together and if two views are possible, then the view i.e. in the beneficial to the claimant, should be adopted and in this case, if the chain of events are seen leading to the death of the deceased, all the factors leading to the death case to show that the deceased was a bona fide passenger who had traveled, has a valid ticket from Mysuru to Ananthapur and died due to an untoward incident. Therefore, on overall consideration of the fact and circumstances of the case, this Court is of the opinion that the deceased was a bona fide passenger, who while traveling from Mysuru to Ananthapur died due to an untoward incident. Accordingly, the first point raised by this Court is answered in favour of the appellants.
25. With regard to the second point as to whether the appellants are entitled to the compensation, this Court is of the opinion that in view of the facts and circumstances as stated supra and the finding given through the first issue, the appellants are entitled to the compensation due to the death caused by the untoward incident and 21 accordingly, the second issue is also in favour of the appellants.
26, In view of the above, I pass the following order:
(i) The appeal is accordingly allowed.
(ii) The appellants are entitled to a total
compensation of Rs.4,00,000/- (Rupees Four Lakhs Only) along with interest @ 6% p.a. from the date of application.
(iii) The respondent-Railways shall pay the said total compensation amount to the appellants within a period of four weeks from the date of receipt of a copy of this judgment.
Sd/-
JUDGE LB