Madras High Court
Union Of India (Uoi) Owning Southern ... vs G. Loganayaki, V. Yuvarani, V. Rajesh ... on 4 January, 2008
Equivalent citations: (2008)1MLJ1110
Author: R. Banumathi
Bench: R. Banumathi
JUDGMENT R. Banumathi, J.
1. Aggrieved against the award passed by the Railway Claims Tribunal Chennai Branch dated 09.07.1998, made in O.A. No. 9600031, awarding compensation of Rs. 2,00,000/- for the death of one Velayutham, Southern Railway has preferred this appeal.
2. Brief facts are as follows:
Dead body of Velayutham was found adjacent to the Railway track of sub-urban train between Avadi and Annanur. A case was registered in Cr. No. 445/1994 under Section 174 Cr.P.C. by Perambalur Railway Police. It is the case of respondents/ claimants that while returning from Thiruninravur, where Velayutham had gone to borrow money from his friend AW-2 Sukumar, while travelling in the train, Velayutham hit against the post and fell down from the train and died on the spot on the night of 16.08.1994.
3. It is the case of appellant/Railways that Velayutham was hit by train while he was trying to cross the Railway track at K.M.18/33A between Avadi and Annanur on 17.08.1994.
4. To substantiate their case, the respondents/claimants examined A.W.s 1 and 2 and marked Exs.A-1 to A-5. Appellant has not adduced any evidence.
5. Upon consideration of evidence, Chairman of Railway Claims Tribunal found that Velayutham boarded the train at Thiruninravur and held that Velayutham was a bonafide passenger, who fell down from the train and died on the spot. One Technical Member held that while deceased was crossing the Railway track negligently, he was hit by train and died due to injuries. In view of difference of views between the Chairman and Technical Member, the matter was referred to the third Member. On the evidence of A.W.s 1 and 2, the third member also held that Velayutham was a bonafide passenger. As per the majority opinion, Velayutham was found to be bonafide passenger, who fell down from the train and died on the spot at K.M.18/33/ 23A between Avadi and Annanur. The Tribunal has awarded compensation of Rs. 2,00,000/- to the respondents who are wife and children of the deceased Velayutham.
6. Assailing the findings of the Tribunal and pointing out the inconsistencies in the evidence of A.Ws.1 and 2, the learned Counsel for the appellant Railways has submitted that the Tribunal did not properly appreciate the prevarications in the evidence of A.Ws.1 and 2. The learned Counsel urged that the story of travelling by train and accidental falling has been cooked up only for the occasion to bring the case within the ambit of Section 123(c)(2) of Railways Act. The learned Counsel further argued that Velayutham was not a passenger and that he sustained injuries only while he tried to cross the Railway track and while so, the Tribunal erred in drawing adverse inference against the Railways which could not produce the Inquest Report.
7. The learned Counsel for the respondents submitted that the evidence of A.W.s 1 and 2 would establish that Velayutham while traveling in the train hit against the post and fell down from the train. Taking me through the order of the Tribunal, the learned Counsel submitted that inspite of several opportunities, Railway had not taken steps to produce the Inquest Report. The learned Counsel submitted that on the basis of evidence of A.W.s 1 and 2, the Tribunal rightly held that Velayutham travelled as a passenger and the award passed by the Tribunal does not suffer from any infirmity.
8. The claim for compensation arises on account of "accident" as well as the occurrence of an "untoward incident", both of which are defined under the Railways Act. As per Section 123(a), "accident" means an accident of the nature described in Section 124. As per Section 123(c), "untoward incident" means -
(1) (i) the commission of terrorist Act within the meaning of Sub-section (1) of Section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or
(ii) the making of a violent attack or the commission of robbery or dacoity; or
(iii) the indulging in rioting, shoot-out or arson, by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a Railway station; or (2) the accidental falling of any passenger from a train carrying passengers.
9. To show that Velayutham had gone to Thiruninravur to borrow money from his friend Velayutham, the first applicant/first respondent examined herself as AW-1 and the said Sukumar was examined as AW-2. In his evidence, AW-2 Sukumar has stated that Velayutham was in the habit of borrowing money from him now and then and that on 16.08.1994, Velayutham met him at his residence at Thiruninravur and thereafter, he accompanied Velayutham to Thiruninravur Railway Station and he purchased the train ticket for his travel from Thiruninravur to Villivakkam and handed over the ticket to Velayutham. In his cross-examination, AW-2 appears to have differed from his earlier version. After noticing discrepancy in the evidence of AW-2 Sukumar, the Tribunal has observed that the evidence of AW-2 is relevant for the limited purpose as to Velayutham going from the work spot to Thiruninravur on the evening of 16.08.1994 and having purchased the ticket for his return journey from Thiruninrarvur to Villivakkam. Velayutham was working as Carpenter in Garage Works, Southern Railway, Perambur. AW-2 Sukumar is a co-worker. On the basis of evidence of A.W.s 1 and 2, Tribunal has held that Velayutham went to Thiruninravur on the evening of 16.08.1994 and he purchased the ticket for his return journey from Thiruninravur to Villivakkam and that Velayutham was a bonafide passenger. That factual finding is based upon evidence and the same cannot be disturbed.
10. The contention of Railways is that Velayutham was hit by train while he was crossing the Railway track between Avadi and Anannur. As rightly pointed out by the Tribunal, place where dead body of Velayutham was found is relevant. It is not in dispute that Velayutham was working as a Carpenter in Garage Works, Perambur and his place of residence is No. 15, Semathamman New Colony, Perambur. The place of work and the residence of the applicants are in Perambur. When that being the position, it is quite improbable that Velayutham would have tried to cross the Railway Track between Avadi and Thiruninravur, which is said to be about 9 kms from the place of residence of the applicants.
11. To substantiate its plea that Velayutham was hit by a Railway train while crossing the Railway track between Avadi and Anannur, appellant Railways has not produced any material on record. The appellant Railways mainly relied upon Inquest Report. Though summons issued by the Tribunal was received by Tahsildar-cum- Executive Magistrate, the Inquest Report was not produced. The Inquest Report would have thrown light upon the position of the body and other vital aspects. Inspite of opportunities, since Railway has not produced the Inquest Report, the Tribunal was justified in drawing adverse inference against the Railways. The learned Counsel for the appellant has submitted that the appellant/Railways had taken all possible steps in issuing the summons to the Tahsildar to cause production of the Inquest Report.
12. Drawing the attention of the Court to certain observations of the Tribunal in paragraph (9) of its order, the learned Counsel for the appellant/ Railways submitted that the Tribunal was not right in saying that necessary steps had not been taken to secure the Inquest Report. It was further submitted that Railways did take summons to Tahsildar who had not produced the Inquest Report and Tribunal erred in drawing adverse inference against the Railways in not producing the Inquest Report. In Paragraph 9 of its order, the Tribunal has elaborately held with this aspect. Pointing out the repeated opportunities given to the Railways, the Tribunal observed that the Railways failed to take coercive steps to the Tahsildar to procure the Inquest Report and drew adverse inference. That conclusion is based on appreciation of evidence and is manifestly fault-free.
13. The Tribunal has referred to the decision of the Madhya Pradesh High Court Raj Kumari and Anr. v. Union of India, which was also a case where compensation for death of a passenger in an accident was being considered. The question that was considered by the Division Bench was whether burden lies upon the dependants to prove that the deceased was a bonafide passenger. Considering the question on whom the burden of proof lies in such claim cases, the Madhya Pradesh High Court has held as follows:
5. The main question that arises in this case is on whom the onus of proof lies in such claim cases and whether any presumption under the Evidence Act can be raised. Normally under Sections 101 and 102 of the Evidence Act, the burden to prove such facts, on which the 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 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, pass or permission, but the same is lost in the accident with the death of person and loss of his belongings, if any.
6. The provisions of Sections 66, 68, 113 and 122 of the Act do indicate that the person is deemed to be a 'passenger' when he travels either on ticket, pass or with permission of the authorised officer of the Railways. Section 68 contains prohibition against travelling without pass or ticket or permission.
14. It is for the Railway administration to prove that the deceased Velayutham was not a bonafide purchaser and that he died while crossing the Railway track. The appellant/Railway has not adduced any evidence to substantiate its plea.
15. Having regard to the evidence of A.W.s 1 and 2 and the place where body was lying, the Tribunal has rightly held that Velayutham travelled as a bonafide passenger in Sub Urban Train and while so travelling, hit against the post and fell down. The conclusion of the Tribunal does not suffer from any flaw or serious infirmity warranting interference. No question of law much less substantial question of law is shown to be involved in this appeal.
16. The applicants are the wife and children of the deceased Velayutham. Respondents 2 to 4 are the minors. The first respondent is a young widow aged about 27 years at the time of accident. To show that the respondents are the dependants, respondents have produced Ex.P-5 Legal Heirship Certificate. Having regard to the age of the first respondent and loss of dependency to the respondents, the Tribunal has awarded compensation of Rs. 2,00,000/-. The appeal is devoid of merits and liable to be dismissed.
17. In the result, the order of Railway Tribunal dated 09.07.1998, made in O.A. No. 9600031 is confirmed and this Appeal is dismissed with costs.