JUDGMENT
S.R.K. Prasad, J.
1. This L.P.A is directed against the judgment rendered by the learned single Judge of this Court in C.M.A.No.1214 of 1999 dismissing the appeal and confirming the awarding of compensation in O.A.A.No.121 of 1998 dated 22.1.1999 by the Railway Claims Tribunal, Secunderabad Bench.
2. The appellant is the Railways whereas the claimant is the respondent herein. They will be arrayed as in the claim petition. The claimants being the husband and daughter of the deceased Venkatalakshmi have claimed compensation of a sum of Rs.2,00,000/- alleging that his wife fell down from the train near Gooty Railway Station while travelling in the second class railway compartment along with them from Madras to Guntakal, crushed in between the train and the platform resulting in her instantaneous death. The claimants have produced the first information report, inquest report, the original copy of the ticket coupon, the original copy of the Excess Fare Ticket of the deceased and also the salary certificate of the deceased, who was employed as a nursing tutor. Subsequently her daughter has given up her claim. The same is resisted by the railways on the ground that the death occurred on account of the negligence and careless act of the deceased who attempted to step down from the moving train before taking a stop on the platform at Gooty station and as such no compensation was payable in view of proviso (b) to Section 124 of the Railways Act, 1989. It was, however, admitted in the counter that II Class Ticket No.80584033 was issued to the deceased, her husband and daughter at Chennai on 11.9.1997. On a consideration of the entire material on record, the Railway Claims Tribunal awarded Rs.2,00,000/- as compensation following the principles laid down by the Supreme Court in the decision reported in G.M., K.S.R.T. Corpn., v. Susamma Thomas1. The Tribunal directed the Railways to pay Rs.50,000/- to the husband by cheque and the remaining amount was ordered to be deposited in nationalized bank as fixed deposit for a period of five years permitting the claimants to draw the interest accrued thereon. Aggrieved by the same, the General Manager, South Central Railway, Secunderabad, has preferred C.M.A.No.1214 of 1999. The learned single Judge of this Court has confirmed the order of the Tribunal by judgment dated 18.8.1999. Thereupon, the railways have preferred this L.P.A.
3. It is mainly contended by the learned counsel appearing on behalf of the appellant that there was no oral or documentary evidence to establish that the first claimant was the husband and dependant of the deceased Venkatalakshmi and the 2nd claimant was their daughter. It is further contended that the original II Class ticket No.80584033 is not produced and only xerox copy is produced. He further contends that the procedure laid down under Section 18 of the Railway Claims Tribunal Act, 1987 was not followed in passing the orders in O.A.A.No.121 of 1998 and it is only based on inadmissible evidence, namely, First Information Report dated 11.9.1997 and the inquest report dated 11.9.1997. It is further contended that the pleadings are discrepant as it is mentioned in the Original Application that the deceased slipped out of the moving train in Gooty Railay Station and another version in the Application was that because of the jerks resulting after the breaks applied to the train, the deceased slipped out of the doorway that was open resulting in the death of the deceased. It is also further contended that Section 124-A of the Railways Act is not attracted in the incident as she has completed the journey in the train and she is not a passenger in the train. It is not a case of falling under the definition of untoward incident within the meaning of Sections 123 and 124 of the Railways Act. Lastly, it is contended that it is a self-inflicted injury within the meaning of proviso (b) to Section 124-A of the Railways Act as the deceased has attempted to alight from the moving train even before it has come to a halt on platform No.2 at Gooty Railway Station. Hence, he has sought for setting aside the judgment of the learned single Judge, who confirmed the awarding of compensation.
4. On the other hand, the learned counsel appearing on behalf of the respondent contends that he is entitled to compensation as dependent of the deceased and she was a bona fide passenger, as the matter will fall under Section 123(c) of the Railways Act.
5. Before adverting to the said contentions of both sides, it is necessary to have a glance at the relevant provisions of Railways Act, 1989. Section 123(c) reads as follows:
” “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 s waiting hall, cloakroom 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.”
Section 124-A reads as follows:
“Compensation on account of untoward incidents, — When in the course of working 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 damages in respect thereof, the railway administration shall, notwithstanding 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 this section by the railway administration if the passenger dies or suffers 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”.
Section 18 of Railway Claims Tribunal Act, 1987 reads as follows:
Procedure and powers of Claims Tribunal:- (1) The Claims Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Claims Tribunal shall have powers to regulate its own procedure including the fixing of places and times of its enquiry.
(2) The Claims Tribunal shall decide every application as expeditiously as possible and ordinarily every application shall be decided on a perusal of documents, written representations and affidavits and after hearing such oral arguments as may be advanced.
(3) The Claims Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely :–
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) subject to the provisions of Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office;
(e) issuing commissions for the examination of witnesses or documents;
(f) reviewing its decisions;
(g) dismissing an application for default or deciding it ex parte;
(h) setting aside any order of dismissal of any application for default or any order passed by it ex parte;
(i) any other matter which may be prescribed.”
6. Pursuant to the Railway Claims Tribunal Act, the Central Government passed the Railway Claims Tribunal (Procedure) Rules, 1989. Rule 5 prescribes the procedure for filing of applications. It has come into effect on 19th September, 1989 and thereafter substituting by G.S.R.700(E) with effect from 26.11.1991. It has prescribed the procedure that has to be followed by the Tribunal as can be seen from Rules 20, 21, 22 and 23 as under:
“20. Procedure and powers of Tribunal: The Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the following matters, namely:–
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) subject to the provisions of Sections 123 and 124 of the Indian Evidence Act, 1872, requisitioning any public record or document or copy of such record or document from any office;
(e) issuing commissions for the examination of witness or documents;
(f) reviewing its decisions;
(g) dismissing an application for default or ex parte;
(h) setting aside any order of dismissal of any application for default or any order passed by it ex parte.
21. Framing and determination of issue:-
(1) After considering the reply, the Tribunal shall ascertain upon what material propositions of fact or of law the parties are at variance and shall thereupon proceed to frame and record the issues upon which the right decision of the case appears to it to depend.
(2) In recording the issues, the Tribunal shall distinguish between those issues which in its opinion concern points of facts and those which concern points of law.
(3) After framing the issues, the Tribunal shall proceed to record evidence thereon which each party may desire to produce.
22. Summoning of witnesses and method of recording evidence:-
(1) If an application is presented by any party to the proceedings for summoning of witnesses, the Tribunal shall issue summons for the appearance of such witnesses unless it considers that their appearance is not necessary for the just decision of the case.
(2) The Tribunal shall make a brief memorandum of the substance of the evidence of every witness as the examination of the witness proceeds and such memorandum shall form part of the record;
Provided that if the Tribunal is prevented from making such memorandum, it shall record the reasons of its inability to do so and shall cause such memorandum to be made in writing from its dictation and shall sign the same, and such memorandum shall form part of the record.
23. Power to issue commission:- Any Bench of the Tribunal may issue a commission for the examination on interrogatories or otherwise of any person who is resident within the territorial jurisdiction of such Bench of the Tribunal and who is unable to attend the Tribunal for any justifiable reason.”
7. It is clearly adumbrated under Rule 21(3) that after framing the issues, the Tribunal shall proceed to record evidence thereon, which each party may desire to produce. Under Rule 20 it is stated that the Tribunal is vested with the power of a civil court and try the suit in respect of the matters mentioned therein. It has also empowered to receive evidence and affidavits. Section 18 of the Railway Claims Tribunal Act states that the Tribunal has got power to regulate its own procedure including the fixing of places and times of its enquiry and it has to decide every application as expeditiously as possible and ordinarily every application shall be decided on a perusal of documents, written representations and affidavits and it has to hear such oral arguments that may be advanced. It is necessary for the Tribunal to follow the procedure mentioned under the said Rules. It is the duty of the Tribunal to record reasons before disposal of the application on perusal of the documents, written representations and affidavits. Whenever issues were framed, it should allow the parties to lead evidence and also receive the evidence and affidavits and the claimants shall be allowed to produce the documents in support of them. It has to receive written representations and after hearing such oral arguments it has to render the judgment. Under Rule 14 the Tribunal has got power to direct the parties to give evidence, if any, by affidavit. We noticed that this procedure is not followed by the Tribunal in letter and spirit and it has been totally ignored. The Tribunal shall be guided by Section 18 as well as Rules 20, 21 and 22 and it cannot totally ignore the procedure contemplated under the Act. What is found in the record is that the parties were orally heard. Even under Section 18 of the Railway Claims Tribunal Act only written representations have to be taken. This Court has got ample power under Article 227 of the Constitution of India to have supervision over the Tribunals constituted throughout the territory of Andhra Pradesh. It is for this Court to correct the notions and the irregular procedures that are being followed by the Railway Claims Tribunal. We find that proper procedure is not being followed and the Rules are not being strictly observed while conducting the enquiry. This shall be avoided. Lest, the claimants will be put to great difficulty if the orders are set aside on technical grounds for failure to follow the procedure contemplated under the Railways Act, 1989 as well as under Section 18 of the Railway Claims Tribunal Act, 1987.
8. Coming to the facts of this case, issues have been framed by the Tribunal. It has disposed of the case on the strength of the documents and the averments made in the written statement basing on F.I.R and inquest report. The learned counsel appearing for the appellant has made an attempt to challenge the conclusions arrived at on the basis of F.I.R and inquest report and contends that they cannot found the basis for arriving at the nature of accident. He has placed reliance on a decision reported in Union of India v. Surendra Prasad Sinha2. Whereas it is contended by the learned counsel for the respondent that he has produced the original documents along with the petition. He also places reliance on a decision reported in Assam State Transport Corporation v. Mahadevi Nayak3. The learned counsel for the appellant has contended that if the death of the passenger is admitted, he wanted the negligence to be proved by looking at the contents of F.I.R and inquest report. An attempt is made by him to show that the passenger alone is negligent as it is self-inflicted injury. In Union of India, South Central Railways, Secunderabad v. K.Balakrishnaiah4 the Full Bench of this Court has laid down the legal proposition and the principles emerging from various ratio decidendi for the guidance. The relevant portion at para 19 reads as follows:
(1) Where a bona fide passenger dies in an untoward incident or sustains injuries, as the case may be, Railways to pay compensation without dispute, unless the death of the deceased, or the injuries sustained by the injured, would fall within the exceptions (a) to (e) of proviso to Section 124-A of the Act.
(2) Accident falling would include a passenger trying to alight a train, board a train, or any other like action, and hence they would be covered by untoward incident as specified in Section 123(c) of the Act.
(3) Railways can always take a specific plea inclusive of exceptions and show how the claimant is not entitled to compensation. Liability in such cases cannot be said to be strict or absolute liability, but liability which may be avoided by Railways by providing that the legal representatives of the deceased victim or the injured claimant, are not entitled to compensation on any one of the defences available to Railways under the Statute so as to disentitle the claimants to claim compensation.
(4) Where a penal provision in a Statute or Rules under Tariff would fall or attract any of the exceptions under Section 124-A proviso, may have to be decided in each and every case and general propositions cannot be laid down in this regard in view of the complexity and diversity of the illustrations and the provisions or the Rules.
(5) The general principles relating to negligence, though may be taken as guiding principles, they cannot be said to be binding in the case of an untoward incident as contemplated by the specific provisions of the Act. Specific provisions of the Act would prevail over such general principles.
(6) Though burden is on Railways, the Railways always has a right to show by specific plea and evidence that claimants are not entitled to compensation in the light of the defences available to the Railways, specified under Section 124-A and Section 123(c) of the Act.
(7) The provisions of the Railways Act and the scheme and the object of the said provisions cannot be said to be exactly the same when compared with the provisions of the Motor Vehicles Act, and the principle of no fault liability under the Motor Vehicles Act as such in its rigour cannot be extended though these provisions under the Act are akin to the provisions under the Motor Vehicles Act in certain respects. However, the underlying principles may be applied in the background of the language of the provisions referred to supra.
(8) Though the expressions “untoward incident” and “accidental falling” may have to be understood and interpreted in their literal sense as specified in the provisions as such, the general principles relating to the burden of proof under the Indian Evidence Act, 1872 also cannot be totally ignored, and such principles may be harmoniously construed and read along with these provisions, depending upon the facts of a given case.”
9. The general principles relating to burden of proof cannot be totally ignored. The act of the woman in this case can never be treated as self-inflicted injury. It is a case where the deceased was travelling with her husband and daughter with ticket No.80584033. It is not disputed before this Court. It is a clear case of untoward incident and it cannot be said to be self-inflicted injury since the railways have failed to place any material before the Court. The learned counsel for the appellant also admits that no material has been produced to show that it is self-inflicted injury. An attempt is made by the learned counsel for the appellant to show that the deceased was getting down from the moving train before taking a stop on the platform at Gooty Station and sustained injuries and the railways would not be liable after getting down the train. Reliance is placed in a decision reported in M/s.Southern Motors v. C.Sivajothiammal5. It is a case arising out of motor vehicle accident. The deceased got down from the bus so as to give way to persons getting down from the bus at the bus stop. The bus started to move before the deceased could board the bus. The deceased ran after the bus and attempted to board the moving bus, but fell down and was crushed. But in the present case the deceased was getting down from the train. It cannot lead to the conclusion that the responsibility of the railways has come to an end. As long as she has not surrendered the ticket before the Ticket Collector, it cannot be stated that she is not a passenger. She continues to be a passenger till she leaves the railway station or premises. We respectfully disagree with the said principles laid down in the aforesaid decision as it is a case of getting down from a bus and there is no question of surrendering the ticket. It is observed in Hamzah D.494 v. Wan Hanafi Bin Wan Ali6 by the Federal Court of Malaysia at para 18 as follows:
“It is our considered opinion that the steps taken by the appellants to passengers including the plaintiff from being at or near the steps were reasonably adequate in the circumstances, and that the appellants were therefore not negligent.”
In the absence of evidence placed regarding negligence, it has no application to the facts of this case. The learned counsel for the appellant also contends that there is contributory negligence. He placed reliance on the decision reported in Temulji Jamsetji Joshi v. The Bombay Electric Supply and Tramways Company Limited7. It is clear from the principles laid down in this decision that there is lot of difference in between the Tramways Company and Railways Company. In the absence of any evidence of negligence on the part of passenger, the principles laid down in the aforesaid decision cannot have much bearing. There is no contributory negligence on the part of the deceased as there is no evidence to that effect. The decision rendered in Assam State Transport Corporation v. Mahadevi Nayak (supra 3) also arises out of motor vehicle, which dashed against the cyclist. It has no application to the facts of this case since the evidence has to be based only upon the F.I.R and inquest report and the judgment of the criminal court as well as the evidence adduced before the Motor Vehicles Tribunal. It has no bearing on the facts of this case. What has to be considered in this case is whether the F.I.R and inquest report can be found basis for proving the negligence. The Court can look into those documents. There are rules framed by the Government of Andhra Pradesh under the Motor Vehicles Act, 1988 stating that the Tribunal has to base its conclusion on the strength of F.I.R and inquest report as can be seen from Rule 476 (7) of Andhra Pradesh Motor Vehicles Rules, 1989 as under:
“Basis to award the claim:– The Claims Tribunal shall proceed to award the claim on the basis of;–
(i) Registration Certificate of the Motor Vehicle involved in the accident;
(ii) Insurance Certificate or Policy relating to the insurance of the Motor Vehicle against the Third party risk;
(iii) Copy of First Information Report;
(iv) Post-mortem certificate or certificate of inquiry from the Medical Officer; and
(v) The nature of the treatment given by the Medical Officer who has examined the victim.”
No such rule has been framed under the Railway Claims Tribunal (Procedure) Rules. Had such rule been framed; there is no difficulty to look into contents of F.I.R and inquest report. The F.I.R can be looked into only for the purpose of death that occurred. The inquest report can be looked into as to the particulars of the person who died and the cause of death being suicidal or accidental. This is not a case of death occurring due to self-inflicted injury as can be seen from F.I.R and inquest report. We have pointed out that there are lacunae in the Rules. It is a case where death is admitted. It is for the railways to prove the negligence and carelessness of the deceased. The Tribunal has perused the documents produced and found that she was the passenger traveling along with the claimants. When such is the case, the railways have to prove that it was self-inflicted injury. There is absolutely no material placed before the Court.
10. To sum up, we find that the deceased is a passenger travelling with a valid ticket along with her husband and daughter and it is case of untoward incident as defined under Section 123(c) of Railways Act which includes the accidental fall of any passenger from a train carrying passengers. The learned single Judge has rightly come to the conclusion that the order of the Tribunal is liable to be confirmed. On a reappraisal of the entire matter, we also come to the conclusion that the judgment of the learned single Judge is based on proper reasoning and it is liable to be confirmed and, accordingly, it is confirmed.
11. Before parting with the case, we state that the Tribunal is not following the Rules framed under Railway Claims Tribunal (Procedure) Rules, 1989. It is the duty of the Tribunal to follow the Rules strictly. It is always better for the Tribunal to receive either affidavit evidence or documentary evidence and mark them so as to consider the same by the appellate court. It is for the concerned authority to incorporate a rule authorizing to look into F.I.R and inquest report, so that the Tribunal can pay compensation after taking into consideration the F.I.R, inquest report and post mortem certificate.
The L.P. Appeal is, accordingly, dismissed with costs as the respondent has succeeded and there is no reason to deprive the costs to the respondent.