Madras High Court
The Union Of India Owning Southern ... vs R.J.Simpson on 15 March, 2012
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.03.2012
CORAM:
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN
CMA.No.1992/2009
MP.Nos.1 and 2/2009 & 1/2010
The Union of India owning Southern Railways
by its General Manager, Chennai ..Appellant
Vs
1.R.J.Simpson
2.C.Simpson ..Respondents
Prayer:- This Civil Miscellaneous Appeal is filed against the order dated 26.11.2008 made in OA.No.82/2006 by the Railway Claims Tribunal, Chennai Bench.
For Appellant : Mr.T.S.Rajamohan
For Respondent : Mr.T.Rajamohan
JUDGEMENT
This Civil Miscellaneous Appeal is filed by the Union of India represented by General Manager, Southern Railways, Chennai against the order dated 26.11.2008 made in OA.No.82/2006 by the Railway Claims Tribunal, Chennai Bench, whereby the Tribunal passed an award for a sum of Rs.4,00,000/- to the claimants with interest at 9 per cent p.a. from the date of the order till payment.
2. The claimants, who are the parents of the deceased Darin Simpson filed the above said claim application claiming a compensation before the Railway Claims Tribunal, Chennai on the ground that on 13.1.2001 at about 8.30 hours, they came to know through police that while their son Darin Simpson was travelling in the electric train near Mambalam, his head was hit by an electric post situate therein and sustained head injury. He was admitted in the Apollo Hospital in the ICU of Apollo Hospital and given treatment and in spite of treatment, he succumbed to injuries on 16.1.2001 at about 17.10 hours.
3. In the reply statement filed before the Tribunal by the Appellant, they denied the travelling of the deceased in the electric train and also denied that he had accidentally fallen down from the running train and sustained grievous injuries due to hit by an electric post. According to them, the claimants' case was constructed based only on the inquest report of the police authority and not based an any facts or any report from the eye witnesses. Their defence is that had the deceased fallen from the train, there would have been a complaint to the nearest Station Master or chain pulling by a co-passenger. As there was no complaint to the police authorities nor any chain pulling reported on the alleged date of the accident, there was no such incident at all and the Appellant is not liable to pay any compensation. It is doubted by them that the alleged accident may be one other than falling from the running train and will not come under the definition of 'untoward incident' within the meaning under Section 124A of the Railways Act. Under the facts and circumstances mentioned above, the Appellant before the Tribunal contended that the claim application was devoid of merits and liable to be dismissed.
4. On the above pleadings, both the parties adduced evidence in support of their respective pleas. The claimants filed the copy of the First Information Report dated 16.1.2001 Ex.A1, accident/injury report of the Apollo hospital Ex.A2, death certificate issued by Apollo Hospital Ex.A3, death certificate Ex.A4, copy of the inquest report Ex.A5, postmortem certificate Ex.A6, copy of the final report Ex.A7 and legal heir certificate Ex.A8. The first claimant examined himself as AW.1. On the side of the Appellant, the report of the Divisional Railway Manager was filed and no one was examined as witness.
5. Mr.T.S.Rajamohan, the learned counsel for the Appellant submitted that the Tribunal, without appreciating the evidence adduced by the parties from its proper perspective, on an erroneous analysis of the facts and circumstances, has awarded compensation to the claimants, which is illegal and liable to be set aside. He would submit that the claim of the claimants is not supported by any substantive evidence. According to him, the accident has not occurred while travelling in the train and the deceased was not a bona fide passenger. Therefore, the Tribunal has committed gross error in awarding compensation in favour of the claimants.
6. On the other hand, Mr.T.Rajamohan, the learned counsel for the Respondents submitted that the deceased was travelling in the electric train and he was a bona fide passenger. He would submit that while the deceased was travelling in the electric train near Mambalam, his head was hit by an electric post and he sustained head injuries. He was admitted in the Apollo Hospital and in spite of treatment given to him, he succumbed to injuries. It is further submitted on behalf of the Respondents that the burden was on the Appellant to prove that the deceased was not a bona fide passenger and in the facts and circumstances of the case, this burden was not discharged by the Appellant. The learned counsel further submitted that such burden cannot be shifted upon the claimants for the simple reason that to discharge such burden of proof is impossible by the claimants, who may not have any means or knowledge about the ticket with the passenger who met with an accident. It was submitted that a welfare and benign legislation ought to be construed in favour of the claimants.
7. The learned counsel for the Respondents drew the attention of this court to the following decisions of various High Courts in support of his contention that the burden is always on the Railways to prove that the deceased was not a bona fide passenger:-
1.1993-ACJ-846-MP (Rajkumari and another Vs. Union of India. 2.1998-I-ACC-529-Rajasthan (Union of India Vs. Sorambai and others) 3.2001-1-TNLJ-146 (D.Rajathi and others Vs. Union of India) 4.2003-ACJ-1286 (Union of India Vs. Baburao Koddekar and another) 5.2004-ACJ-713-AP (Agam Shanthamma Vs. Union of India)
6.AIR-2007-Rajasthan-38 (Union of India Vs. Harinarayan Gupta and another) 7.2008-1-TN Current Judgement-108-Madras High Court (Union of India Vs. G.Loganayaki) 8.2009-1-TCA-644 (Aktari Vs. Union of India)
9.CDJ-2007-MHC-3784 (S.Poonkodi and others Vs. Union of India)
8. The learned counsel for the Respondents contended that the deceased cannot be termed as mala fide passenger and therefore, the Tribunal has rightly concluded that the deceased met with an accident within the meaning under Section 123(c)(2) of the Railways Act. The learned counsel after making reference to the ruling made in Union of India Vs. Prabhakaran Vijaya Kumar (2008-ACJ-1895-SC) submitted that the liberal meaning ought to be given to the expression 'accidental falling of any passenger from a train carrying passengers' occurred in Section 123(c)(2) of the Railways Act. He would further submit that as it is welfare piece of legislation, the provisions have to be construed so as to give benefit to railway passengers to enable them to get just and proper compensation in railway accidents.
9. The learned counsel for the Respondents also argued that the presumption could be drawn in favour of the claimants when no evidence is adduced by the Railways with regard to the negligence and carelessness on the part of the deceased.
10. I have gone through the evidence on record, documents as also the submissions made by the learned counsel on either side with reference to the relevant provisions referred to.
11. In my view, the above said provisions are welfare piece of legislation in order to enable the claimants to receive just compensation in case of fatal railway accident and to enable the injured victims in railway accidents to claim compensation on the basis that they met with an untoward incident within the meaning under Section 123(c)(2) of the Railways Act. Further amendment into effect from 1994 made the legislative intention clear that large number of railway passengers ought to get just compensation in railway accidents.
12. In the present case, as held by the Tribunal that the Appellant failed to adduce adequate evidence before the Tribunal to discharge the required onus that the deceased was not a bona fide passenger. The accident/injury report Ex.A2 says that the deceased was brought to the Apollo Hospital at about 1.15 p.m. on 13.1.2001. In the affidavit filed by the first claimant, it has been stated that he came to know from the Railway Police that on 13.1.2001, while the deceased was travelling in the train from St.Thomas Mount to Egmore to see his relatives, near Mambalam Railway Station, due to heavy crowd and jerking and jolting of the train, he was hit by an electric post and in that process, he sustained grievous head injuries and accidentally fallen down from the moving train and he was admitted in the Apollo Hospital and he succumbed to the injuries on 16.1.2001. During the cross examination, it revealed that that his son was a student studying B.Com in Loyola College and he used to travel daily from St.Thomas Mount to Nungambakkam. He was not aware as to whether his son has purchased the ticket. In Ex.A2 accident/injury report, the cause of death has been recorded as his head having been hit by an electric post, he fell down from the train in between Mambalam and Saidapet Railway Stations. In the inquest report Ex.A5 in Column 3, the same narration is made that his head had hit the electric post while he was travelling in the electric train on 13.1.2001 at about 8.30 a.m. and immediately he was to taken to Apollo Hospital for treatment. In Column 15, it has been asserted that the deceased had met with a train accident between Mambalam and Saidapet Railway Stations and as his head hit the electric post, he fallen down accidentally from the train. Even in Column 22, the investigating officer has concluded that the deceased died as he was hit by an electric post while he was travelling in a electric train near Mambalam. The final report Ex.A7 also disclosed that the deceased had met with an accident while he was travelling in the electric train and his head was hit against the electric post, which resulted in head injures. In the final report, the investigating officer has concluded that it is a case of accidental death.
13. At this juncture, it is relevant to refer to the report submitted by the Divisional Railway Manager accepting the fact that the deceased sustained head injuries when his head was hit by the electric post near Mambalam Railway Station, but however stated that the deceased was not having any pass or ticket to travel in the train. Therefore, it is opined that there is no evidence available on record and therefore, he could not be considered as a bona fide passenger. Admittedly, the deceased sustained those injuries on 13.1.2001 and immediately he was taken to the Apollo Hospital and he succumbed to those injuries after three days i.e. on 16.1.2001. Since postmortem has been done on 16.1.2001, there was no possibility to retrieve any journey ticket from his body. Further, the possibility of the journey ticket being lost during the transit from the place of the incident to the Hospital also cannot be ruled out.
14. Since the body of the deceased was removed in a serious injured condition by a third party, the accident was not reported to the Station Master or to any other authority in the Railway Station. From the evidence placed on record, it is confirmed that the deceased had sustained head injuries while travelling in the train his head was hit by electric post. It is also pertinent to point that even in the claim petition, the claimants have stated that the deceased had purchased II Class journey ticket between Mambalam and Saidapet Railway Stations and the said ticket was not retrieved by the Appellant and it appears to have been lost.
15. Under Sections 101 and 102 of the Evidence Act, no doubt the burden to prove on facts on which 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 the 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, but the same is lost in the accident. In all those cases cited by the learned counsel for the Respondent, it is emphasised that the burden is always on the Railways to prove that the deceased was not a bona fide passenger or the nature of death not fall within Section 124A of the Act. I need not dwell into those decisions on this aspect, suffice to state that all those decisions reiterated that when the Railways fails to discharge the burden cast upon them, the presumption is that the deceased was a bona fide passenger.
16. At this juncture, it is relevant to refer to the decision reported in 2003-ACJ-52-Kerala:2002-1-KLT-678 (Joji C.JOhn Vs. Union of India) wherein it is held that merely because the ticket is lost during the accident, the passenger cannot be held as not a bona fide passenger. The question mooted for consideration in the aforesaid case was whether due to mere non production of ticket, an adverse inference can be drawn by the Tribunal that the person who got injured and succumbed to injuries has travelled without a valid journey ticket and that he was not a bona fide passenger. According to the claimants, in that case, the deceased was holding journey ticket and the same was lost in the accident.
17. The said plea of the claimants was accepted and it was held that mere non production of ticket cannot be held adverse to that of the claimant. It has been proved from the investigation of the Railway Police itself that the deceased died of the accident as his head was hit by the electric post. The First Information Report, investigation report filed by the Railway Police, postmortem report and the final report submitted by the Railway Police Authorities all in one voice concluded the case as an accidental death. Even the report of the Divisional Railway Manager concurred with the findings that it was an accidental death and it did not indicate any foul play in the death of the deceased. The Appellant has not adduced any evidence to show that the case comes within any of the instances specified in the proviso to Section 124A of the Railways Act. Once it is found that it is case of death and comes within the purview of untoward incident within the meaning of 124A of the Railways Act, the claimants are entitled to get compensation as provided in the Schedule to the Railway Accidents and Untoward (Incidents) Compensation Rules, 1990.
18. In this case, on the basis of the evidence placed on record and in view of the consistent decision of the various courts, the Tribunal has rightly come to the conclusion that the Appellant could not succeed in proving that the deceased was not a bona fide passenger. The reasoning given by the Tribunal is based on evidence placed on record. There is no rebuttal evidence produced by the Appellant before the Tribunal. Therefore, in my opinion, the Tribunal has rightly come to the conclusion that the deceased was a bona fide passenger and the accident is construed to be untoward incident covered under Section 123(c)() of the Act.
19. It is contended by the learned counsel for the Appellant that as his head hit against the electric post, the injury speaks for itself that it was due to negligence act of the deceased. As a last argument, the learned counsel for the Appellant resisted the claim by contending that the deceased was guilty of negligence or at least contributory negligence. The Honourable Supreme Court in the case of Union of India Vs. Prabhakaran Vijayakumar (2008-ACJ-1895-SC) dealt with in detail the scope of the liability arising out of accident fall of any passenger from a train carrying passengers with reference to the relevant provisions of the Railways Act. The concept of 'strict liability' that originated from the judgement of House of Lords in Rylands Vs. Fletcher in 1868 has been explained in the context of the liability arising under the untoward incidents occurring in passenger trains. The Honourable Supreme Court observed that since the provisions are in the nature of social security measures, even where two views are possible, one that is beneficial to the victims must be adopted. Viewed from any angle, this court does not find any basis to interfere with the order under appeal.
20. In view of the discussions made above, I am of the considered view that the Tribunal is perfectly justified in rejecting the contention of the Appellant that the deceased was not a bona fide passenger. The Tribunal is perfectly justified in holding that the deceased died on account of the accidental falling from the train and therefore, I do not find any warrant for interference with the said findings. I have no hesitation to hold that it is a case of death coming within the purview of untoward incident within the meaning of Section 124A of the Railways Act and therefore, the claimants are entitled to get compensation as provided in the Schedule to the Railway Accidents and Untoward (Incidents) Compensation Rules, 1990.
21. In the result, this Civil Miscellaneous Appeal is dismissed. It is seen from the records that the Appellant deposited the entire award amount with interest. The claimants are entitled to withdraw the entire award with interest. No costs. Consequently, the connected MPs are closed.
Srcm To:
1.The Railway Claims Tribunal, Chennai Bench
2.The Record Keeper, VR Section, High Court, Madras