IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 275 of 2009()
1. VARKEY, AGED 53 YEARS
... Petitioner
2. ROSAMMA, AGED 51 YEARS,
Vs
1. UNION OF INDIA REPRESENTED BY THE
... Respondent
For Petitioner :SRI.MARTIN G.THOTTAN
For Respondent :SRI.SUBAL J.PAUL, SC, RAILWAYS
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :08/12/2010
O R D E R
K.M.JOSEPH & M.C.HARI RANI, JJ.
* * * * * * * * * * * * *
M.F.A.No.275 of 2009
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Dated this the 8th day of December, 2010
J U D G M E N T
`CR’
M.C.HARI RANI,J
The petitioners in O.A.No.13/07 before the Railway Claims
Tribunal, Ernakulam Bench are the appellants. On 20/2/2004 at
8.30 p.m Sri.Tiby George, the son of the appellants died in a
train accident near Madukarai station while he was travelling in
Train No.6525 Island Express from Kottayam to Bangalore. The
appellants made a claim of Rs.4,00,000/- towards compensation.
The Claims Tribunal disallowed the claim and the petition was
dismissed. Aggrieved by the above judgment, the petitioners
filed a review petition and the same was also dismissed with
costs. Hence this appeal.
2. The case of the appellants was that on 20/2/2004,
Sri.Tiby George, the son of the appellants, while travelling in
Train No.6525 Island Express from Kottayam station to
Bangalore, accidentally fell down from the train when the train
reached near Madukarai station and died of the head injury
M.F.A.No.275 of 2009 2
sustained on him. He was a bona fide passenger holding a
reserved ticket bearing No.65372085 in S9 coach. The
appellants’ son Sri.Tiby George was a student in Florence School
of Nursing, Bangalore. As part of his studies, he had to undergo
Psychiatric course for a period of six months and he was
undergoing the said course at Thiruvalla Mission Psychiatric
hospital. In the midst of the course, in order to appear for the
examination at Bangalore, the deceased, along with other
students, booked ticket from Thiruvalla to Bangalore. On
20/2/2004, though the ticket was booked from Thiruvalla, the
deceased boarded the train from Kottayam since the appellants
were residing there. The number of the ticket in which the
deceased was travelling was 65372085 and the same was valid
for traveling from Thiruvalla to Bangalore. Photocopy of the
ticket was produced by the appellants before the Claims Tribunal
as Ext.A5. The untoward incident occurred on 20/2/2004 at 8.30
p.m and the deceased accidentally fell down near Madukarai
station and died of the injuries. Thus the appellants claimed a
total compensation of Rs.4,00,000/-.
3. The main contention of the respondent in the reply
statement filed was that the deceased travelled near the door
M.F.A.No.275 of 2009 3
way keeping the door opened and fell down due to his own
careless and negligent act. In spite of warnings, the deceased
travelled without precaution to safety and fell down due to his
careless and negligent act and the respondent is not liable and is
absolved from liability under Section 124A(b) of the Railways
Act 1989. It was also contended that the inquest report and final
report prepared by the police regarding the said accident in
Crime No.38/04 revealed that the deceased travelled in reserved
coach No.9 from Thiruvalla and came to Coach No.2 to see his
friends and while throwing banana skin fell down from the train.
According to the respondent, the enquiry made by the Railway
officials revealed that the deceased did not report in S9 coach
upto Madukarai station and was marked as not joined. The
respondent denied that the appellants are the only dependents of
the deceased.
4. The Tribunal framed necessary issues. The evidence
consists of the oral testimony of PW1 and Exts.A1 to A7 for the
appellants and that of the oral evidence of RW1 and Ext.R1 on
the side of the respondent. Issue No.2 considered by the
Tribunal was “whether the deceased was a bona fide passenger
in Train No.6525 on 22/02/2004 from Kottayam to Bangalore as
M.F.A.No.275 of 2009 4
alleged.” After considering the evidence adduced in the case,
the Tribunal found that all evidence tendered in this case
indicate that an accident took place on 20/02/2004; but the
applicants in O.A have stated in paragraph 6 of their application
that the accident took place on 22/02/2004. According to the
Tribunal, if it was a mistake, it would have been amended by the
applicants and for the reason that no amendment has been
made, the evidence adduced on the side of the applicants does
not support their claim and if at all an incident had taken place,
it was on 20/2/2004. The non-filing of the SM’s memo to prove
that the incident was reported to the Station Master then and
there and the non-production of the police investigation report,
spot Panchanama or inquest Panchanama and the non-
mentioning in the postmortem report to indicate that the
deceased was a victim of any railway accident etc. were relied on
by the Claims Tribunal and found that the applicants/appellants
were not entitled to any compensation from the respondent.
5. Heard the learned counsel for the appellants and the
learned Standing counsel for the respondent.
6. The question for consideration is whether Tibi George
died in an untoward incident occurred while he was travelling in
M.F.A.No.275 of 2009 5
train No.6525, Island Express at Madukarai Railway Station?
The learned counsel for the appellants submitted that on
20/2/2004 the deceased was travelling in the above train and at
8.30 p.m when the train reached near Madukari Railway
Station, he fell down and died due to the head injury. The case of
the Railway was that the deceased fell down due to his own
careless and negligent act of travelling near the doorway
keeping the door open and hence the respondent is not liable
and is absolved from liability under Section 124(A) (b) of the
Railways Act, 1989. It was argued by the learned Standing
Counsel for the respondent that the date of the accident was
stated in the application as 22/2/2004 and no evidence was
adduced to prove the same. So also no steps were taken to
correct the date, if it was a mistake. As such the appellants are
not entitled to any compensation.
Chapter XIII of the Railways Act, 1989 deals
with the Liability of Railway Administration for
Death and Injury to Passengers due to
Accidents. S.123, the first section of the
Chapter, has the definition clauses, Cl.(c)
defines “untoward incident” which in so far as
relevant for the present case is as under:
M.F.A.No.275 of 2009 6
“123(c) untoward incident means:
(1) (i) xxxxxxxxxxxx
(ii) xxxxxxxxxx
(iii) xxxxxxx
(2) the accidental falling of any passenger from
a train carrying passengers.
S.124A of the Act provides as follows:-
“124A- Compensation on account of untoward
incident – When in the course of working in a
railway an untoward incident occurs, then
whether or not there has been any wrongful act,
neglect or default on the part of the railway
administration such as would entitle a passenger
who has been injured or the dependant of a
passenger who has been killed to maintain an
action and recover damanges in respect thereof,
the railway administration shall, notwithsanding
anything contained in any other law, be liable to
pay compensation to such extent as may be
prescribed and to that extent only for loss
occasioned by the death of, or injury to, a
passenger as a result of such untoward incident;
Provided that no compensation shall be
payable under the section by the railway
administration if the passenger dies or suffers
M.F.A.No.275 of 2009 7
injury due to –
(a) suicide or attempted suicide by him;
(b) self-inflicted injury;
(c) his own criminal act;
(d) any act committed by him in a state of
intoxication or insanity;
(e) any natural cause or disease or medical or
surgical treatment unless such treatment
becomes necessary due to injury caused by
the said untoward incident.
Explanation – For the purpose of this section,
“passenger” includes-
i) a railway servant on duty; and
ii) a person who has purchased a valid
ticket for travelling by a train
carrying passengers, on any date or a
valid platform ticket and becomes a
victim of an untoward incident”.
7. In the reply statement filed by the respondent as also in
the testimony of RW1, it is not denied that Tibi George fell
down from the train and died while travelling on it on a valid
ticket. The contention of the respondent was that the inquest
report and final report prepared by the police revealed that Tibi
George travelled in reserved coach No.9 from Thiruvalla and
came to coach No.2 to see his friends and while throwing
M.F.A.No.275 of 2009 8
banana skin, he fell down from the train. It was further
contended by the respondent that the deceased had not
reported in S9 coach upto Madukarai and he fell down from
Coach No.2 and the accident occurred due to his own careless
and negligent act and he travelled near the door way keeping
the door open. Thus, admittedly, the deceased was ‘a passenger’
for the purpose of S.124A as clarified by the Explanation. Under
S.124A, the liability to pay compensation is regardless of any
wrongful act, neglect or default on the part of the railway
administration. But as per the proviso to the section, the railway
is not liable to pay any compensation if the passenger died or
suffered injury due to any of the reasons mentioned in Clauses
(a) to (e). The respondent herein has no such contention that
the death of Tibi George was a case of suicide or a result of self
inflicted injury. So also the respondent has no case that he died
due to his own criminal act or he was in a state of intoxication or
he was insane, or he died due to any natural cause or disease.
His falling down from the train was, thus, clearly accidental. A
criminal act mentioned in clause(c) to the proviso to S.124A
must have an element of malicious intent or mensrea. Standing
at the open door and travelling in another coach in the same
M.F.A.No.275 of 2009 9
train and not in the particular seat of the reserved coach, that is
instead of the reserved S9 Coach, travelling in S2 coach by the
deceased after carrying a valid ticket for the journey from where
he fell down are not criminal acts so as to absolve the railway
from liability to pay compensation to the appellants.
8. Respondent admitted that Tibi George fell down from
the train but his fall was attributed to his own negligence. The
contention of the railway was that as the accident occurred as a
result of the negligent act of the deceased, it would not come
within the ambit of S.124A of the Railways Act and as such the
appellants are not entitled to any compensation. On the
otherhand it is submitted by the learned counsel for the
appellants that the accident in which Sri Tiby George died did
not occur because of any of the reasons mentioned in clauses (a)
to (e) of the proviso to S.124A, it would definitely come within
the purview of the main body of S.124A of the Railways Act, and
not its proviso.
9. The learned counsel for the appellants relied on the
decision reported in Union of India V. Prabhakran Vijaya
Kumar (2008(2) KLT 700) wherein it was held that:
” S.124A lays down strict liability or no fault
M.F.A.No.275 of 2009 10
liability in case of railway accidents. Hence,
if a case comes within the purview of S.124A
it is wholly irrelevant as to who was at fault”.
10. An untoward incident as defined in Section 123 of the
Railways Act would include the accidental falling of any
passenger from a train carrying passengers. S.2(29) of the
Railways Act defines ‘passenger’ to mean a person travelling
with a valid pass or ticket. Section 123(c) of the Act defines
‘untoward incident’ to include the accidental falling of any
passenger from a train carrying passengers. S.124A deals with
the compensation on account of death due to an untoward
incident. The evidence adduced in this case would reveal that on
20.2.2004, the deceased boarded the train (Island Express) at
Kottayam with his destination at Bangalore and was travelling in
the train with a valid ticket and at 8.30 pm, when it reached near
Madukarai, he fell down and died due to head injury sustained
on him. The evidence would further reveal that he was a student
in Florence School of nursing in Bangalore and at the time of
accident, he was undergoing Psychiatry course as part of his
study at the Thiruvalla Mission Psychiatric Hospital. In the
midst of the course he along with other students booked the
tickets from Thiruvalla to go to Bangalore to appear for
M.F.A.No.275 of 2009 11
examination. The parents of the deceased were residing at
Kottayam and he boarded the train from Kottayam, though the
ticket was booked from Thiruvalla. The testimony of RW1 also
was to the effect that the deceased fell down from S2 coach of
the train while it was leaving Madukarai Station and the train
was stopped due to the chain pulling and he recorded the ticket
number of the passenger who fell down. That accident according
to RW1 happened on 20.2.2004 while he was on duty as TTI of
6525 express train from Ernakulam Town to Coimbatore. It is
true that no eye witness has been examined to prove how the
accident occurred. With respect to the same there is only
hearsay evidence. At any rate it can by no stretch of imagination
be held to be an act of suicide or a self inflicted injury. When the
act of the deceased does not come within any of the categories in
clauses (a) to (e) of the proviso to Section 124A, the death of the
deceased would come within the ambit of accidental falling of a
passenger from a train carrying passengers defined as an
“untoward incident”. As the death was caused due to an
untoward incident, the appellants, who are the parents of the
deceased are entitled to compensation as provided under Section
124A of the Railways Act. The finding of the Claims Tribunal that
M.F.A.No.275 of 2009 12
the deceased was not a bonafide passenger and thereby the
applicants were not entitled to compensation from the
respondent cannot be justified and the appellants are entitled to
the compensation.
11. Much importance had been given by the Claims
Tribunal with regard to the difference of the date of accident
made in column 6 of the application as 22/2/2004 and the failure
on the part of the applicants to correct the same.
12. It is true that in column No.6 of the main petition, the
date of the accident was noted as 22/2/2004 at 8.30 p.m. In
column 18 of the same petition, the date of the accident was
stated as 20/02/2004 at 8.30 p.m. Other information mentioned
in columns 6 and 18 of the petition were that “while the
deceased was travelling in Island Express from Kottayam to
Bangalore, when the train reached near Madukarai, the
deceased accidentally fallen from the train and died.” In spite of
that, Pothannur railway station registered a case as Crime
No.38/04 on the basis of the First Information Statement given
by Sri.Sminu Jose on 20/02/2004 at 10.30 p.m, a friend and
classmate of the deceased who was also travelling along with the
deceased Sri.Tiby George for the purpose of examination. In the
M.F.A.No.275 of 2009 13
F.I.R also, the date of the accident was noted as 20/02/2004. In
the reply statement filed on behalf of the respondent, the date of
the accident was mentioned as 20/02/2004. Description
regarding the date of the accident noted in column No.6 as
22/2/2004 was highlighted by the Tribunal and it did not notice
the date mentioned in column No.18 of the petition as 20/2/2004.
Issue No.2 was framed by the Tribunal as if the allegation of the
applicants in the petition was the deceased travelled in Train
No.6525 on 22/2/2004. Definite case of PW1, the mother of the
deceased both in the chief affidavit and also in the cross-
examination was that the date of the accident was 20/02/2004
and her son succumbed to the injuries sustained in the accident
occurred at 8.30 p.m on that day which has not been
controverted. Instead, it was elicited and affirmed in the cross-
examination that she got the information about the accident on
February 20, 2004 at around 9 p.m over telephone informed by
his friends. The only suggestion put by the learned counsel for
the respondent was that the deceased travelled at the door ways
without any precaution and as a result, he fell down due to this
careless and negligent act which has been denied by PW1. RW1,
who was the T.T.I of Train No.6525 Island Express from
M.F.A.No.275 of 2009 14
Ernakulam town to Coimbatore on 20/02/2004 who maintained
the diary, copy of the relevant page of which was marked as
Ext.R1, stated that the train was stopped on that day after
leaving Madukarai station due to I.C. chain pulling since a
passenger had fallen down from S2 coach. RW1 has also
deposed that he recorded the ticket number of the passenger
who had fallen down from the train which was obtained from
S.M. Coimbatore and that ticket was for travelling in S9 coach,
berth No.71; but that person had not reported in S9 coach from
Ernakulam Town to Coimbatore. In the cross-examination, RW1
has stated that regarding the incident occurred on 20/2/2004 in
Train No.6525 Island Express, he had given message to
S.M.Coimbatore. Thus, it is evident from the evidence adduced
by both parties that the accident occurred on 20/02/2004 as
stated in column 18 of the petition and the date of the said
accident noted in column No.6 of the original petition as
22/2/2004 was only a typographical mistake regarding which,
much importance has been given by the Claims Tribunal which
cannot be supported. We are, therefore, constrained to interfere
in the matter. The judgment and order of the Claims Tribunal is
set aside. The appellants claimed a total compensation of Rs.4
M.F.A.No.275 of 2009 15
lakhs. The appellants are entitled to the above amount as
compensation to be paid to offset the loss suffered by the
appellants due to the untoward incident. The Railway ought to
have paid the amount at the time of accident itself and, in any
event, at the time when it received the copy of the application.
The applicants are not responsible for the delay and they have to
be compensated. In the circumstances, we are of the opinion
that the Tribunal ought to have awarded interest from the date
of application.
13. In the result this appeal is allowed. The appellants are
entitled to the compensation of Rs.4 lakhs together with interest
at the rate of 6% per annum on the above amount from the date
of petition till the date of payment with costs.
K.M. JOSEPH, JUDGE
M.C. HARI RANI,JUDGE
jsr/lgk