JUDGMENT
Arun Mishra, J.
1. This appeal has been preferred under Section 23 of the Railway Claims Tribunal Act, 1987 aggrieved by an award dated 6-1-1999 passed by Member (T) Railway Claims Tribunal/Mumbai at Bhopal in Case No. 626/97.
2. An application was filed under Section 125 of the Railways Act, 1989 (hereinafter referred to as ‘the Act’) by appellant; S.K. Sharma claiming compensation of Rs. 1,40,000/- for the injuries caused to him on 24-7-1997 while travelling by Kashi Express between Guramkhedi and Sohagpur Railway Stations in a stopped train because of engine failure and waiting for arrival of another engine, it is submitted that he took permission from conductor and sat in the ordinary bogie, engine came from behind and hit the bogie, in which he was sitting, he was lying down, he sustained injuries.
3. Railway in their reply denied the averments contending that the ticket filed by the applicant was that of passenger train, applicant could not have travelled in Kashi Express. Name of applicant was not in the list of injured persons. With regard to taking permission from conductor the fact was denied for want of knowledge. Claimant was not a bonafide passenger. He was not holding valid ticket. Ticket was that of passenger train, he was in the Express Train. Case was not one under Section 123(b)(i) of the Act.
4. There was difference of opinion between Members of Railway Claims Tribunal. One of the Judicial Member in his separate opinion dated 31-8-1998 opined that Explanation (ii) below Section 124(A) includes even platform ticket holder in the definition of passenger. The explanation requires a ticket for travelling by ‘a train’ not by ‘the train’, involved in the accident. Therefore, passenger ticket purchased by the applicant is sufficient to hold that he was a bonafide passenger even under Section 124(A) of the Railway Act. He was not disqualified to claim compensation. He was not in drunken state and it was not self-inflicted injury or due to any criminal acts etc. Compensation of Rs. 1,40,000/- was awarded along with interest @ 12% per annum from 26-11-1997 till the date of payment along with Counsel fee of Rs. 4,000/-. The other two Members; Judicial and Member (Technical) disagreed with the opinion. It was held by them that definition of ‘passenger’ is given in Section 2(29) of the Act which means a passenger travelling with a valid pass or ticket. The applicant was travelling by Express train. He was holding IInd Class ordinary ticket, which was not valid for travelling by Mail or Express Train. Thus, the claimant was not holding valid ticket and entitled to claim compensation. He was not a bonafide passenger in the ill-fated train on 25-7-1997. Consequently, application was ordered to be dismissed. Aggrieved thereby this appeal has been preferred.
5. Shri S.K. Shukla, learned Counsel for the appellant has submitted that the claimant had the ticket of passenger train and there is an affidavit on record to show that he had taken permission before boarding and paid the difference fare to the Conductor. Conductor had assured to issue ticket later. Thus, in the facts and circumstances of the case it cannot be said that the claimant was not bonafide passenger.
6. Shri S.P. Sinha, learned Counsel appearing on behalf of the Railway has submitted at length that bonafide passenger has been defined under Section 2(29) to mean a person travelling with a valid pass or ticket. He has further submitted that Section 55 of the Act carves out prohibition against travelling without valid pass or ticket. He has submitted that no person shall enter for the purpose of travelling train as a passenger unless he is having proper pass or ticket without obtaining permission of railway servant authorized in this behalf for such travel. The permission is provided under Sub-section (2) of Section 55 of the Act, shall ordinarily be in the writing in a prescribed certificate. The provision of Sub-section (2) of Section 55 is mandatory. No written permission was obtained of the conductor, the permission of conductor was obtained was not mentioned in the application as such plea was set up as an after thought. He has further submitted that Section 137 makes it an offence in case person fraudulently travels or attempts to travel without proper pass or ticket. Thus, the claimant in fact has committed an offence punishable under Chapter XV of the Act. He has further submitted that word ‘passenger’ has been referred to Section 124, the claimant cannot be said to be a passenger as contemplated under Section 124. He has relied upon Division Bench decision of Patna High Court in Ramchandra Prasad Sinha v. Union of India and Anr. , and Allahabad High Court in Smt. Sundri and Ors. v. Union of India and Anr. , to submit that the passenger travelling without valid ticket and permission is not a passenger. Passenger must have valid ticket or permission. The claimant was not having a valid ticket, thus, he was a trespasser.
7. It is not in dispute that claimant was having a ticket of passenger train from Bhopal to Gadarwara. Instead of passenger train at the time of accident on the same route he was in the Express train. It was also not in dispute that when train was stationary an engine dashed the bogie from behind was the cause of accident.
8. Section 2(29) of the Act clearly provides that “passenger” means a person travelling with a valid pass or ticket. Section 55 of the Act reads thus:
55. Prohibition against travelling without pass or ticket.- (1) No person shall enter or remain in any carriage on a railway for the purpose of travelling; therein as a passenger unless he has with him a proper pass or ticket or obtained permission of a railway servant authorised in this behalf for such travel.
(2) A person obtaining permission under Sub-section (1) shall ordinarily get a certificate from the railway servant referred to in that sub-section that he has been permitted to travel in such carriage on condition that he subsequently pays the fare payable for the distance to be travelled.
It is clear that under Sub-section (1) of Section 55 person must have proper pass or ticket or obtained permission of railway servant authorized in this behalf for such travel. Sub-section (2) of Section 55 provides that a person obtaining permission to travel under Sub-section (1) shall ordinarily obtain a certificate from railway servant. An uncontroverted affidavit has been filed by the claimant on 31-8-1998 that he was travelling with Shri S.K. Diwan in the train. They boarded passenger train from Habibganj, Bhopal to Itarsi and boarded Kashi Express from Itarsi to Gadarwara. He had paid fare to the conductor to travel in the Express train and after his due permission boarded the train. The conductor had assured him to issue the ticket later. No counter affidavit has been filed by the Railway denying the facts mentioned in the aforesaid affidavit. In reply factum of taking permission from conductor was denied for want of knowledge. Denial for want of knowledge is not denial. Thus, it appears that the claimant had obtained the permission of the conductor who was authorized to permit to travel in the train as provided under Sub-section (1) of Section 55. It was merely an irregularity in the case that the certificate as contemplated under Sub-section (2) of Section 55 was not obtained for which the claimant could not be said to be responsible. It is rightly submitted by Shri S.K. Shukla, learned Counsel appearing on behalf of the claimant that the permission is usually given orally before boarding the train and thereafter difference of fare is usually realized by the conductor. There is nothing to doubt the correctness of an Affidavit filed by claimant. Thus, on facts, it is clear that the claimant was a passenger as contemplated under Section 2(29) read with Sections 55 and 124A of the Act.
10. Shri S.P. Sinha, learned Counsel appearing on behalf of the Railway has submitted that the case of oral permission should not be relied upon as no written permission was obtained by the claimant. He remained passenger without valid ticket. In case Railway was desirous of challenging the correctness of the Affidavit and submission made by the claimant, it ought to have filed counter affidavit. In the absence thereof, in my opinion, the claim of the claimant could not have been rejected.
11. In Ramchandra Prasad Sinha (supra), it was laid down by the Patna High Court that the person travelling without ticket or permission is not passenger within the meaning of Section 82A of the Railway Act, 1890. There is no dispute with the aforesaid preposition. The passengers were travelling without ticket in that case. In the instant case facts are different. Thus, the decision has no application in the instant case.
In Smt. Sundri and Ors. v. Union of India (supra), the Full Bench of Allahabad High Court has laid down that a person travelling without ticket, pass or authority, is not a passenger, but, merely a trespasser. However, in the instant case, as claimant was holding a ticket and had obtain the permission, thus, I find that the decision is of no application.
12. Coming to quantum of compensation : quantum of compensation has not been disputed as determined by learned Judicial Member. Thus, it is held that the claimant is entitled for a sum of Rs. 1,40,000/- along with interest. Interest is reduced from 12% to 8% considering the fact that rates have gone down substantially.
13. Resultantly, the appeal is allowed accordingly. No order as to costs.
