High Court Kerala High Court

Varkey vs Union Of India Represented By The on 8 December, 2010

Kerala High Court
Varkey vs Union Of India Represented By The on 8 December, 2010
       

  

  

 
 
  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
                  ----------------------------------------
         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