JUDGMENT
K.A. Abdul Gafoor, J.
1. The defendants of a victim in a railway accident have come up with this appeal, as their petition for compensation was dismissed by the Railway Claims Tribunal, Ernakulam. The untoward incident occurred on 16.8.1997, when the deceased Muhammed Ashraff was travelling in a train between Thiruvananthapuram and Karunagappally. He fell out of the train. The train was stopped. Immediately, he was taken to the hospital by the fellow passengers. On the way to the hospital he succumbed to the injuries. Compensation was claimed by the appellants. Necessary evidence to show that he was a passenger was produced in the form of Ext.P5, a photocopy of the identity card issued by the Railways and Ext.P6, the original thereof. The Tribunal found that the accompaniment to Ext.P5, the season ticket, had not been produced and therefore, it cannot be taken that he was a bona fide passenger. The claim petition was dismissed.
2. It is contended by the appellants that in the light of Ext.P5, the claimants have discharged their burden to show that he had been a passenger in the train. In such circumstances, it is upon the railway to show that he was not a bonafide passenger and that he did not have a ticket at the time of accident. That burden had never been discharged by the railway. In support of this contention the decision reported in Joli C. John v. Union of India, 2002 (1) KLT 678, is relied on. It is further submitted that the railways did not have a quarrel as to the fact that the death occurred as a result of a fall from a running train. Necessarily, in order to compute the compensation the schedule to the Railway Accidents and Untoward (Incidents) (Compensation) Rules, 1990 as amended on 1.11.1997, on which date the claim petition was pending, shall have to be applied and being a case of death an amount of Rs. 4 lakhs has to be awarded. The decision of the Tribunal has therefore to be reversed, it is urged.
3. It is contended on behalf of Railway Administration that Ext.A6 does not contain the thumb impression or signature of the person to whom that identity card had been issued. Therefore, it is not a valid document. Moreover, Ext.P6 as such does not have any validity unless it is accompanied by the season ticket. Necessarily, in the absence of the season ticket, Ext.A6 does not have any validity by itself. So it does not prove that he was a passenger with a ticket at the time of accident. It cannot also be ruled out that there was no attempt of suicide to attract the proviso to Section 124A of the Railways Act, 1989, contends the counsel for the Railways.
4. Section 2(36) of the Railways Act, 1989 defines the ‘passenger’. Passenger means a person travelling with a valid pass or ticket. The railways have got the necessary process to exclude passengers without valid pass or ticket. In such circumstances, when a person had fallen from a running train, merely because there was no ticket in his bag or pocket it cannot be concluded that he was a passenger without ticket. The burden is therefore on the railway to prove that he did not at the material time have a valid ticket or pass.
5. In this case Ext.A6 had been produced. It has been proved through PW1, one of the brothers of the claimant. There is no cross examination disputing the validity or otherwise of Ext.A6 nor the railway adduced any evidence to show that it was a fake one. The railways have no contention that Ext.A6 could be issued without a season ticket. In the absence of that it has been proved through Ext.A6 issued on 28.7.1997 that he was a passenger with a ticket. Necessarily, it would have been issued by the railway administration as an accompaniment to a valid railway pass. Ext.A5 also bears a number. If it had been a false one railway can establish that fact easily based on the records kept by them. As the railways could not discharge that burden it can safely be concluded, on the strength of Ext. A6, that the deceased had been a passenger with a valid ticket. At any rate the burden on the Railways remains undischarged.
6. The claimants had a case that the deceased had been a daily commuter between Karunagapally and Thiruvananthapuram for the purpose of his employment. That Ext.A6 identity card has been issued to him on 28.7.1997 itself indicates that he must have been having a valid season ticket on that day. Necessarily, on the fateful day he must have been a passenger with a ticket.
7. There is no much quarrel for the railways that an accident had not been taken place. In such circumstances the death is as a result of an untoward incident defined in terms of Section 123(C)(ii) of the Act.
8. There is also no dispute with regard to the factum of death. The railway had also not adduced any evidence, much less made any pleading to bring the death within the proviso in Section 124 A. Necessarily, that exception is also not available to the railways. Consequently, from the proved factum of death, the compensation is payable in terms of item No. 1 of Schedule to the Railway Accidents and Untoward (Incidents) (Compensation) Rules, 1990. Of course the schedule was brought into force on 11.11.1997, few months later than the untoward incident in this case. But it has been held by this Court in the decision reported in Joli C. John v. Union of India, 2002 (1) KLT 678, following the Supreme Court decision in Rathi Menon v. Union of India, 2001 (2) KLT 12, that the Schedule can be applied even to the cases pending as on 11.11.1997. The impugned order shows that the claim petition was pending as on that date. Necessarily, the rate provided in the Schedule has to be applied. The appellants will, consequently, be entitled to an amount/Rs. 4 lakhs with 8% interest.
Appeal is allowed.