Madras High Court
S.Chinnappan vs The Union Of India on 8 April, 2022
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 15.03.2022
Pronounced on : 08.04.2022
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
C.M.A No.3296 of 2017
1.S.Chinnappan
2.C.Stella
(Deceased died as Bachelor)
... Appellants
Vs.
The Union of India
Represented by the General Manager ... Respondent
Civil Miscellaneous Appeal filed under Section 23 of the Railway Claims
Tribunal Act, 54 of 1987, to set aside the order dated 29.06.2017 in O.A
(II-U) 132/2016 passed by the Railway Claims Tribunal, Chennai Bench.
For Appellant .. Mr.T.Raja Mohan
For Respondent .. Mr.M.Vijay Anand
https://www.mhc.tn.gov.in/judis JUDGMENT
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Civil Miscellaneous Appeal has been filed challenging the
judgment dated 29.06.2017 in OA (II-U) 132 / 2016 passed by the
Railway Claims Tribunal, Chennai Bench.
2.The applicants therein are the appellants herein. They had filed
OA (II-U) 132/2016 under Section 16 of the Railway Claims Tribunal
Act, 1989 seeking compensation of Rs.4,00,000/- together with interest at
9% per annum, owing to the unfortunate death of their son C.Alexander,
who had died on 03.02.2016 and who fell down between Koradachery
and Kulikkarai Railway Stations while traveling in second class fare from
Tiruvarur to Nidamangalam and was traveling in the general
compartment. He fell down due to over crowd, speed, jerk and jolt of the
train. He suffered injuries on the head, right leg and on his back. One of
the passengers stopped the train by pulling the chain. He was shifted by
108 ambulance to Government Tiruvarur Medical College and Hospital.
However, he died on the same day / 03.02.2016.
3.Owing to amendment in the Act, the compensation payable for
death of a passenger owing to untoward incident has been enhanced to
Rs.8,00,000/-.
4.Claiming compensation his parents had filed an application
before the Tribunal. They had also filed copies of the First Information
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Report, Accident Register, Message issued by Chief Train Clerk, Inquest
Report, Postmortem report, Final Report submitted by the police, the
Death Certificate and Legal Representative Certificate which were all
marked as Exs.A1 to A6.
5.During the course of trial, the respondent however, denied
liability, and claimed that the deceased C.Alexander was not a bonafide
passenger. They further claimed that the copy of the Accident Register
showed that the accident history was not clear. It was stated that he had
been admitted to the hospital by his father. It was not clarified how the
father arrived to take the deceased to the hospital. They claimed that they
were not liable for any compensation under Section 124-A of the
Railways Act, 1989.
6.The report of the DRM along with the enquiry conducted by the
Guard of the train had also been marked as exhibits. The respondent
stated that they had been informed that the victim traveled on the
footboard, chatting on the mobile phone and fell down from the running
train. They also stated that the train was not crowded and that the victim
was not a bonafide passenger.
7.The Tribunal had taken up as issues whether the claimants were
dependents, whether the deceased was a bonafide passenger and whether
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there was any untoward incident on 03.02.2016 and whether the
applicants were entitled for compensation.
8.With respect to issue whether the applicants were dependents of
the deceased, the Tribunal had held in the affirmative.
9.With respect to the deceased was a bonafide passenger, the
Tribunal observed that it was stated in the DRM report that the deceased
was not a bonafide passenger. The ticket dated 03.02.2016 bearing
No.186430169 meant for journey from Tiruvarur to Nidamangalam, was
issued at 5.15 p.m. Information about the accident was received at 5.40
p.m., stating that one person had fallen from Train No.16187 beyond
Thirumathikunnam railway station. The train was detained for five
minutes. The Accident Register was written at 7.25 p.m. The Chief
Booking Supervisor stated that the ticket was not valid for journey by
express train. It was therefore stated that the deceased was not entitled to
travel in the said train. It was also stated that the availability of the ticket
created a suspicion of planting the ticket. The Tribunal therefore
concluded that the deceased was not a bonafide passenger.
10.In this connection, the Tribunal referred to a judgment of the
Delhi High Court reported in (2014 ACJ 1505), Geeta V. Union of
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India and of the Karnataka High Court reported in (2014 ACJ 2505),
Union of India V. Lakshmi & Others, wherein, it was stated that the
initial burden was on the claimants to prove that the deceased was a
bonafide passenger. Holding that, the deceased was not a bonafide
passenger and that the accident was not an untoward incident, the Claim
Petition was dismissed.
11.Challenging that particular finding in the judgment, the
claimants have filed the present Civil Miscellaneous Appeal.
12.Heard arguments advanced by Mr.T.Raja Mohan, learned
counsel appearing for the appellants and Mr.M.Vijay Anand, learned
counsel appearing for the respondent.
13.The fact that the deceased / C.Alexander, fell down from a
running train between Koradachery and Kulikkarai Railway Stations
while traveling in Train No.16187 is not in dispute and cannot be denied.
The fact that he was a passenger of that train cannot be denied or
disputed. The fact that he fell down on the track and suffered injuries
leading to his death again cannot be denied or disputed. That ticket
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bearing No.186430169 issued at Tiruvarur railway station at 5.15 p.m
had been produced as a document again cannot be denied.
14.It is the contention of the respondent that the ticket holder of the
said ticket was not permitted to travel in an express train. If a ticket
holder having purchased ticket for a passenger train is found to be
traveling in an express train within the stations for which he is entitled to
travel, then he is liable for fine and penalty to pay the difference amount.
He still remains a passenger of the train. He cannot be termed as stranger
or a trespasser into the train. He had purchased a ticket but should have
purchased the ticket of higher value to enable him to travel in an express
train. He still a bonafide passenger but without a proper ticket, therefore
the reasoning of the Tribunal that the deceased / C.Alexander was not a
bonafide passenger has to be rejected.
15.Even otherwise reference can be made to the judgment of the
Hon'ble Supreme Court reported in (2019) 3 SCC 572, Union of India v.
Rina Devi. In that case, a claim was made by a widow for the death of
her husband who was said to have fallen down from Train No.532 on
20.08.2002, when it was traveling between Karauta to Khusrupur, due to
rush of passengers and died on the spot. The ticket could not be
produced. However, an affidavit was filed that the ticket had been
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purchased. The contention of the respondent there was that the deceased
was wandering in the railway track and they also placed reliance on the
statement of his cousin that he suffered from mental disorder and was
wandering in that state of mind. The Hon'ble Supreme Court even under
those circumstances had held as follows:
“Re : (ii) Application of principle of strict liability —
Concept of self-inflicted injury
20. From the judgments cited at the Bar we do not see any
conflict on the applicability of the principle of strict
liability. Sections 124 and 124-A provide that compensation
is payable whether or not there has been wrongful act,
neglect or fault on the part of the Railway Administration in
the case of an accident or in the case of an “untoward
incident”. Only exceptions are those provided under
proviso to Section 124-A. In Prabhakaran Vijaya
Kumar [Union of India v. Prabhakaran Vijaya Kumar,
(2008) 9 SCC 527 : (2008) 3 SCC (Cri) 813] it was held
that Section 124-A lays down strict liability or no fault
liability in case of railway accidents. Where principle of
strict liability applies, proof of negligence is not required.
This principle has been reiterated
in Jameela [Jameela v. Union of India, (2010) 12 SCC 443
: (2010) 4 SCC (Civ) 644] .
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21. Coming to the proviso to Section 124-A to the effect that
no compensation is payable if passenger dies or suffers
injury due to the situations mentioned therein, there is no
difficulty as regards suicide or attempted suicide in which
case no compensation may be payable. Conflict of opinions
in High Courts has arisen on understanding the expression
“self-inflicted injury” in the proviso. In some decisions, it
has been held that injury or death because of negligence of
the victim was on a par with self-inflicted injury. We may
refer to the decisions of the High Courts of Kerala
in Joseph P.T. [Joseph P.T. v. Union of India, 2013 SCC
OnLine Ker 24151 : AIR 2014 Ker 12] , Bombay
in Pushpa [Pushpa v. Union of India, 2017 SCC OnLine
Bom 8117 : (2017) 3 ACC 799] and Delhi in Shyam
Narayan [Shyam Narayan v. Union of India, 2017 SCC
OnLine Del 8734 : 2018 ACJ 702] on this point.
22. In Joseph P.T. [Joseph P.T. v. Union of India, 2013
SCC OnLine Ker 24151 : AIR 2014 Ker 12] , the victim
received injuries in the course of entering a train which
started moving. Question was whether his claim that he had
suffered injuries in an “untoward incident” as defined
under Section 123(c) could be upheld or whether he was
covered by proviso to Section 124-A clause (b). The High
Court held that while in the case of suicide or attempt to
commit suicide, intentional act is essential. Since the
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concept of “self-inflicted injury” is distinct from an
attempted suicide, such intention is not required and even
without such intention if a person acts negligently, injuries
suffered in such an accident will amount to “self-inflicted
injury”. Relevant observations are : (SCC OnLine Ker para
24)
“24. Therefore, the two limbs of the proviso should
be construed to have two different objectives to be
achieved. We can understand the meaning of the
term “self-inflicted injury” not only from the
sources provided by the dictionaries, but also from
the context in which it is used in the statute. The
term “self-inflicted injury” used in the statute can
be deduced as one which a person suffers on
account of one's own action, which is something
more than a rash or negligent act. But it shall not
be an intentional act of attempted suicide. While
there may be cases where there is intention to
inflict oneself with injury amounting to self-
inflicted injury, which falls short of an attempt to
commit suicide, there can also be cases where,
irrespective of intention, a person may act with
total recklessness, in that, he may throw all norms
of caution to the wind and regardless of his age,
circumstances, etc. act to his detriment. Facts of this
case show that the appellant attempted to board a
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moving train from the offside unmindful of his age
and fully aware of the positional disadvantage and
dangers of boarding a train from a level lower than
the footboard of the train. It is common knowledge
that the footboard and handrails at the doors of the
compartment are designed to suit the convenience
of the passengers for boarding from and alighting
to the platform. And at the same time, when a
person is trying to board the train from the non-
platform side, he will be standing on the heap of
rubbles kept beneath the track and that too at a
lower level. Furthermore, he will have to stretch
himself to catch the handrails and struggle to climb
up through the footboard hanging beneath the
bogie. The probability of danger is increased in
arithmetic progression when the train is moving.
Visualising all these things in mind, it can only be
held that the act of the appellant was the height of
carelessness, imprudence and foolhardiness. It is
indisputable that the purpose of Section 124-A of
the Act is to provide a speedy remedy to an injured
passenger or to the dependants of a deceased
passenger involved in an untoward incident. Section
124-A of the Act provides for compensation to a
passenger or his dependants who suffers injury or
death, as the case may be, in an untoward incident
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even where the untoward incident is not the
consequence of any wrongful act, neglect or default
on the part of the Railway Administration. To this
extent, it can be said to be a no-fault liability. Even
though the provisions relating to payment of
compensation in the Act can be said to be a piece of
beneficial legislation, it cannot be stretched too
much to reward a person who acts callously,
unwisely or imprudently. There is no provision of
law brought to our notice permitting the passengers
to entrain from the non-platform side of the railway
track. However, the counsel for the respondent did
not show any provision of law prohibiting the same.
The question whether an act by which a passenger
sustains injury while boarding a train through the
offside, is a self-inflicted injury or not depends on
the facts of each case. Merely because a person
suffered injury in the process of getting into the
train through the offside, it may not be sufficient to
term it as a self-inflicted injury, unless the facts and
circumstances show that his act was totally
imprudent, irrational, callous and unmindful of the
consequences. All the facts and circumstances
established in this case would show that the act of
the appellant was with full knowledge of the
imminent possibility of endangering his life or limb
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and, therefore, it squarely comes within the term
“self-inflicted injury” defined in Section 124-A
proviso (b) of the Act.”
(emphasis supplied)
23. In Pushpa [Pushpa v. Union of India, 2017 SCC
OnLine Bom 8117 : (2017) 3 ACC 799] a hawker died in
the course of boarding a train. It was held that he was not
entitled to compensation as it was a case of “self-inflicted
injury”. The relevant observations are : (SCC OnLine Bom
para 14)
“14. Such an attempt by a hawker has been
viewed by the trial court as something amounting
to criminal negligence on his part and also an
effort to inflict injuries to himself. The trial court
reasoned that if the deceased had to sell his goods
by boarding a train, he should have ensured to do
so only when it was quite safe for him to get on to
the train or otherwise he could have avoided
catching the train and waited for another train to
come. It also hinted that there was absolutely no
compulsion or hurry for the deceased in the
present case to make an attempt to somehow or the
other board the train while it was gathering
speed.”
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24. In Shyam Narayan [Shyam Narayan v. Union of
India, 2017 SCC OnLine Del 8734 : 2018 ACJ 702] , same
view was taken which is as follows : (SCC OnLine Del para
7)
“7. I cannot agree with the arguments urged on
behalf of the appellant applicants in the facts of
the present case because there is a difference
between an untoward incident and an act of
criminal negligence. Whereas negligence will not
disentitle grant of compensation under the
Railways Act, however, once the negligence
becomes a criminal negligence and self-inflicted
injury then compensation cannot be granted. This
is specifically provided in the first proviso to
Section 124-A of the Railways Act which provides
that compensation will not be payable in case the
death takes place on account of suicide or
attempted suicide, self-inflicted injury, bona fide
passenger's own criminal act or an act committed
by the deceased in the state of intoxication or
insanity.”
25. We are unable to uphold the above view as the
concept of “self-inflicted injury” would require intention to
inflict such injury and not mere negligence of any
particular degree. Doing so would amount to invoking the
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principle of contributory negligence which cannot be done
in the case of liability based on “no fault theory”. We may
in this connection refer to the judgment of this Court
in United India Insurance Co. Ltd. v. Sunil Kumar [United
India Insurance Co. Ltd. v. Sunil Kumar, (2019) 12 SCC
398 : 2017 SCC OnLine SC 1443 : (2017) 13 Scale 652]
laying down that plea of negligence of the victim cannot be
allowed in claim based on “no fault theory” under Section
163-A of the Motor Vehicles Act, 1988. Accordingly, we
hold that death or injury in the course of boarding or de-
boarding a train will be an “untoward incident” entitling a
victim to the compensation and will not fall under the
proviso to Section 124-A merely on the plea of negligence
of the victim as a contributing factor.
Re : (iii) Burden of proof when body found on
railway premises — Definition of passenger
26. Conflict of decisions has been pointed out on the
subject. As noticed from the statutory provision,
compensation is payable for death or injury of a
“passenger”. In Raj Kumari [Raj Kumari v. Union of India,
1992 SCC OnLine MP 96 : 1993 ACJ 846] referring to the
scheme of the Railways Act, 1890, it was observed that
since travelling without ticket was punishable, the burden
was on the Railway Administration to prove that passenger
was not a bona fide passenger. The Railway Administration
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has special knowledge whether ticket was issued or not. The
1989 Act also has similar provisions being Sections 55 and
137. This view has led to an inference that any person dead
or injured found on the railway premises has to be
presumed to be a bona fide passenger so as to maintain a
claim for compensation. However, the Delhi High Court
in Gurcharan Singh [Gurcharan Singh v. Union of India,
2014 SCC OnLine Del 101 : 2015 ACJ 171] held that
initial onus to prove death or injury to a bona fide
passenger is always on the claimant. However, such onus
can shift on the Railways if an affidavit of relevant facts is
filed by the claimant. A negative onus cannot be placed on
the Railways. Onus to prove that the deceased or injured
was a bona fide passenger can be discharged even in
absence of a ticket if relevant facts are shown that ticket
was purchased but it was lost. The Delhi High Court
observed as follows : (Gurcharan Singh case [Gurcharan
Singh v. Union of India, 2014 SCC OnLine Del 101 : 2015
ACJ 171] , SCC OnLine Del para 4)
“4. … (ii) In my opinion, the contention of the
learned counsel for the appellant claimants is totally
misconceived. The initial onus in my opinion always
lies with the appellant claimants to show that there is
a death due to untoward incident of a bona fide
passenger. Of course, by filing of the affidavit and
depending on the facts of a particular case that
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initial onus can be a light onus which can shift on the
Railways, however, it is not the law that even the
initial onus of proof which has to be discharged is
always on the Railways and not on the claimants. I
cannot agree to this proposition of law that the
Railways have the onus to prove that a deceased was
not a bona fide passenger because no such negative
onus is placed upon the Railways either under the
Railways Act or the Railway Claims Tribunal Act and
the Rules or as per any judgment of the Supreme
Court. No doubt, in the facts of the particular case,
onus can be easily discharged such as in a case
where the deceased may have died at a place where
he could not have otherwise been unless he was
travelling in the train and in such circumstances
depending on the facts of a particular case it may
not be necessary to prove the factum of the deceased
having a ticket because ticket as per the type of
incident of death can easily be lost in an accident. I
at this stage take note of a judgment of a learned
Single Judge of this Court in Pyar Singh v. Union of
India [Pyar Singh v. Union of India, (2007) 8 AD
Del 262] which holds that it is the claimant upon
whom the initial onus lies to prove his case. I agree
to this view and I am bound by this judgment and not
by the ratio of the case of Leelamma [Union of
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India v. Leelamma, 2009 SCC OnLine Ker 903 :
(2009) 1 KLT 914] .”
27. In Jetty Naga Lakshmi Parvathi [Jetty Naga Lakshmi
Parvathi v. Union of India, 2011 SCC OnLine AP 828 :
2013 ACJ 1061] the same view was taken by a Single Judge
of Andhra Pradesh after referring to the provisions of the
Evidence Act as follows : (SCC OnLine AP para 24)
“24. So, from Section 101 of the Evidence Act,
1872, it is clear that the applicants, having come to
the court asserting some facts, must prove that the
death of the deceased had taken place in an
untoward incident and that the death occurred while
the deceased was travelling in a train carrying
passengers as a passenger with valid ticket.
Therefore, having asserted that the deceased died in
an untoward incident and he was having a valid
ticket at the time of his death, the initial burden lies
on the applicants to establish the same. The initial
burden of the applicants never shifts unless the
respondent admits the assertions made by the
applicants. Such evidence is lacking in this case.
Except the oral assertion of AW 1, no evidence is
forthcoming on behalf of the applicants. The court
may presume that the evidence which could be, and
is not produced, would, if produced, be
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unfavourable to the person who withholds it. The
best evidence rule, which governs the production of
evidence in courts, requires that the best evidence of
which the case in its nature is susceptible should
always be produced. Section 114(g) of the Evidence
Act, 1872 enables the court to draw an adverse
presumption against a person who can make
available to the court, but obstructs the availability
of such an evidence. The Claims Tribunal, upon
considering the material on record, rightly
dismissed the claim of the applicants and there are
no grounds in this appeal to interfere with the order
of the Tribunal.”
28. In Kamrunnissa [Kamrunnissa v. Union of India,
(2019) 12 SCC 391 : 2017 SCC OnLine SC 304] , from the
circumstances appearing in that case it was held that there
was no evidence that the deceased had purchased the ticket.
In the given fact situation of that case, this Court inferred
that it was not a case of “untoward incident” but a case of
run over. It was observed:
“7. The aforestated report also reveals, that the
body of the deceased had been cut into two pieces,
and was lying next to the railway track. The report
further indicates, that the intestine of the deceased
had come out of the body. The above factual
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position reveals that the body was cut into two
pieces from the stomach. This can be inferred from
the facts expressed in the inquest report, that the
intestines of the deceased had come out of the
body. It is not possible for us to accept that such an
accident could have taken place while boarding a
train.
8. In addition to the factual position emerging
out of a perusal of Paras VII and VIII extracted
hereinabove, the report also reveals that besides a
pocket diary having been found from the person of
the deceased a few telephone numbers were also
found, but importantly, the deceased was not in
possession of any other article. This further clears
the position adopted by the railway authorities,
namely, that the deceased Gafoor Sab, was not in
possession of a ticket, for boarding the train at the
Devangere Railway Station.”
16.The law laid down by the Hon'ble Supreme Court is clear. They
have very categorically held that even if an affidavit is filed about the
purchase of a ticket, the initial burden of proof is discharged and the onus
shifts to the railways to prove that the deceased was not a bonafide
passenger.
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17.In the instant case, a ticket had been produced. It was for the
railways to establish that the deceased was not a bonafide passenger. A
mere statement that he was traveling in an express train with the ticket of
a passenger train cannot dislodge the fact that he was a passenger of the
train and that he can be termed as bonafide passenger, if he pays the
penalty required. The judgment of Hon'ble Supreme Court is binding.
18.I would therefore allow the Civil Miscellaneous Appeal with
costs and set aside the judgment of the Railway Claims Tribunal in OA
(II-U) 132/2016 dated 29.06.2017. A direction is given to respondent to
deposit the claim amount of Rs.8,00,000/- (Rupees Eight Lakhs only), in
view of the amendment to the Act, enhancing the compensation together
with interest at 9% per annum from the date of this award till the date of
realization, within a period of six weeks from the date of receipt of a copy
of this order. On such deposit the appellants are permitted to withdraw
the sum in equal proportions.
08.04.2022
Internet:Yes/No
Index:Yes/No
smv
To
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The Railway Claims Tribunal, Chennai Bench.
C.V.KARTHIKEYAN,J.
smv https://www.mhc.tn.gov.in/judis Pre-delivery Judgment made in 22 C.M.A No.3296 of 2017 08.04.2022 https://www.mhc.tn.gov.in/judis