Smt. Girijamma and Others vs The Union of India (UOI)

Venugopala Gowda, J.—Applicants in O.A 6/2005 on the file of Railway Claims Tribunal (for short ''the Tribunal''), Bangalore Bench, are the Appellants. An application filed by them u/s 16 of the Railway Claims Tribunal Act, having been dismissed by the Tribunal, this appeal has been filed.

Brief facts of the case are:

Applicants/Appellants are the mother, brother and sisters of one M.M. Nagaraj, S/o. M.S. Mahalingappa, who according to them was coming back on 15.03.2004 to Harihar from Bangalore in Inter-City Express Train as a passenger and when the train entered the platform, M.M. Nagaraj in order to alight at Harihar, Came near the door and as the driver of the train drove the train in rash and negligent manner, due to which there was jerk in the compartment, he lost balance and control, fell down and the train ran over him at Harihar Railway Station. Having sustained fatal injuries, M.M. Nagaraj succumbed. A case was registered in UDR No. 35/2004 u/s 174 of Code of Criminal Procedure by the Davanagere Railway Police. Claiming that they are the dependents of the deceased, an application was filed against the Respondent in the Tribunal, to direct payment of compensation amount with interest.

Respondent filed reply statement and denied the averments made in the application that, the deceased was a bonafide passenger possessing a 2nd class ticket No. 38763260, travelled in train No. 6592 from Bangalore to Harihar on 15.03.2004 and while alighting from the train at Harihar, he having fallen down from the train in the manner stated in the application. It was further contended that, the applicants are not entitled to compensation in view of proviso to Section 124-A of the Railways Act (for short ''the Act''). It was contended that, the deceased had not taken any care and caution about his safety and the death of the deceased was due to his own negligence and the incident does not attract the provision of Section 123(c)(2) of the Act and hence, it is not liable to pay compensation as the act of the deceased squarely falls Under the exception of 124-A of the Act.

The tribunal framed the following issues on 14.06.2007:

i) Whether the deceased was a bona fide passenger?

ii) Whether the applicants are the sole dependents of the deceased Sri. M.M. Nagaraj and whether the applicants are eligible for compensation as mentioned in Para 16 of the application?

iii) Whether the deceased Sri M.M. Nagaraj died on account of injuries sustained by him in an untoward incident of accidental fall from Intercity Express on 15.03.2004?

iv) What relief and what order?

Affidavit evidence of Smt. Girijamma, the 1st applicant, was filed. She was examined as AW-1. She reiterated the statements made in the claim application. Exs.A-1 to A-13 were marked. Ex.A-4 is the copy of journey ticket. AW-1, who was not present at the spot of the incident, her evidence with regard to manner of occurrence of the accident is of No. assistance,

Affidavit evidence of one Basappa, S/o. Virupakshappa was filed and he was examined as AW-2. AW-2 was a second division clerk at Vishwachetana High School, Bangalore. According to him, on 14.05.2004, deceased had come to his place and was with him upto 1:30 P.M on 15.05.2004, whereafter, he purchased a ticket to travel in Inter-City train and he was there till the departure of the train and that, he learnt about the falling of M.M. Nagaraj from the train and his death after he received a phone call from Harihar. In the cross-examination, he has stated that, the deceased was running finance business and had come to Bangalore on 14.05.2004 for an overnight stay at his place and thereafter he came alongwith him to the school and that, they left the house at 9:15 hours and after going round the city, they reached Railway Station at 13:30 hours on 15.05.2004 to go to Harihar by Inter-City Express. He has stated that, the deceased purchased the ticket and the train arrived at 14:25 hours and Nagaraj boarded the 3rd bogie from the engine side. He came to know of the accident from Mahalingappa over telephone. The suggestion made to him that he has deposed falsely to assist the applicants has been denied.

Ex.A-1 is the first information received in respect of unnatural death of an accident on 15.05.2004 by the Davanagere Railway Police. Ex.A-2 is the inquest mahazar conducted on the body of M.M. Nagaraj, S/o. Mahalingappa, who was found dead on Road No. 1, near K.M 338/3-4 at Harihar Railway Station. Ex.A-3 is the P.M Report of M.M. Nagaraj. Ex.P-4 is the xerox copy of the journey ticket - 88763269 from Bangalore City to Harihar. Ex.A-5 is the statement of M.S. Mahalingappa recorded by Railway Police on 16.05.2004. Ex.A-7 is the final report submitted by the Railway Police, Davanagere, relating to the incident in question.

For the Respondent, No. evidence either oral or documentary was adduced before the Tribunal.

The Tribunal has noticed the evidence placed on its record, to the effect that, on 15.05.2004, the deceased travelled in Inter-City train No. 6592 from Bangalore to Harihar and accidentally fell down while alighting from the train and went under the train and as a result of which he was cut into pieces and died on the spot with blood stains, has held that, such an injuries case be sustained only in case of suicide or in a case where such an incident occurs when a person negligently crosses the track without noticing the approaching train and not in accidental fall from the train. By observing that the record shows black railway oil marks having found on the body, it has held that, the person is run over by a train engine and in the case of fall from a coach carrying passengers, there is No. possibility of black oil marks. Tribunal has disbelieved the evidence of AW-2 since he aid not submit platform ticket purchased by him. Tribunal has held that, the deceased has not died on account of the injuries sustained by him in an untoward incident by an accidental fall from Inter-City Express nor was a bonafide passenger. Issues 1 & 3 wore answered in the negative. Issue No. 2 was answered in the affirmative and the application was dismissed.

Sri N.M. Handral, learned Counsel appearing for the Appellants, contended that, the Tribunal has committed an error and illegality in answering issue No. 3 against the Appellants. Learned Counsel contended that, there is non-consideration of material evidence by the Tribunal in the correct perspective and the findings of the tribunal on issue No. 3 is perverse and illegal. Learned Counsel placed reliance on the decision in the case of Jameela and Others Vs. Union of India (UOI), .

Sri N.S. Sanjay Gowda, learned Counsel appearing for the Respondent, on the other hand contended that, there is correct appreciation of evidence by the Tribunal, Learned Counsel contended that, there was No. untoward incident and it is a case of suicide and hence, the Tribunal is justified in dismissing the application. Learned Counsel further contended that, in the facts and circumstances of the case, the Appellants are not entitled to the relief prayed in their application and the appeal may be dismissed.

In view of the rival contentions and the record of the case, which I have perused, the point for consideration is:

Whether the Tribunal has committed error in holding that it is a case of suicide and not an untoward incident?

In my opinion, the Tribunal has erred in holding that the applicants are not entitled to any compensation u/s 124A of the Act. The case of the Railway Administration was that, it is on account of negligence of the deceased the accident has occurred. It is also contended that, it is a case of suicide. Indisputedly, No. evidence has been adduced on behalf of the Respondent. Hence, there is absolutely No. evidence to support the case of Railways that the accident took place in the manner suggested by it in its reply statement.

Chapter XIII of the Railways Act, 1989 deals with the Liability of Railway Administration for Death and Injury to Passengers due to Accidents. "Untoward incident" as defined therein, also means and includes the accidental falling of any passenger from a train carrying passengers. Indisputably, train No. 6592 is an Inter-City Express train Section 124A is with regard to compensation on account of untoward incident.

There is No. denial of the fact that the deceased had a valid ticket (Ex.A-4). Therefore, he is a passenger as defined u/s 2(29) of the Railway Act for the purpose of Section 124A as clarified by the Explanation II thereunder. Significantly, the Tribunal has not recorded any finding with regard to Ex.A-4.

In ZAMEELA and ORS (supra), the liability of the Railways in respect of passengers falling down from running train while travelling on valid ticket was considered with reference to provisions u/s 123, 124A and 154 of the Act and it has been held as follows:

The manner in which the accident is sought to be reconstructed by the Railway, the deceased was standing at the open door of the train compartment from where he fell down, is called by the railway itself as negligence. Now negligence of this kind which is not very uncommon on Indian trains is not the same thing as a criminal act mentioned in Clause (c) to the proviso to Section 124A. A criminal act envisaged under Clause (c) must have an element of malicious intent or mens rea. Standing at the open doors of the compartment of a running train may be a negligent act, even a rash act but, without anything else, it is certainly not a criminal act. Thus, the case of the railway must fail even after assuming everything in is favour.

In Union of India (UOI) Vs. Prabhakaran Vijaya Kumar and Others, , considering the expression "accidental falling of a passenger from a train carrying passengers", it has been held that, it not only applies when a person has actually got inside the train and thereafter falls down from the train/but it includes a situation where a person is trying to board the train and falls down while trying to do so. It has been held that, the provision for compensation in the Act, which is a beneficial piece of legislation, should receive a liberal and wider interpretation.

The occurrence of untoward incident, sustaining of fatal injuries by M.M. Nagaraj and his death at Harihar Railway Station premises on 15.03.2004, is not in dispute. There is nothing material elicited in the cross-examination of AW-2 to disbelieve his testimony. Merely because he knew the deceased and the applicants, his evidence cannot be discarded, that too in the absence of any credible rebuttal evidence being placed on record by the Respondent. The Tribunal without considering the evidence placed on record in the proper perspective, having adopted a wrong approach to the matter, has erroneously dismissed the claim application. The appreciation of evidence, placed on record of the case by the Tribunal is perverse. The applicants have established that M.M. Nagaraj travelled in Inter-City train on 15.03.2004 as a passenger holding Ex.A-4-railway ticket and while alighting at Harihar Railway Station has fallen down, as a result sustained fatal injuries and died. The occurrence of the untoward incident having been established, the claim putforth to order payment of compensation is justified.

In view of the above, I am of the opinion that, the contention urged for Railways that, there was No. fault on the part of the Railways and it is a case of suicide of the fall was on account of carelessness and negligence of the deceased is based on total misconception of railways and is not supported by any evidence.

In the result, the appeal is allowed and the impugned order/award is set-aside.

The application filed before the Tribunal is allowed. The Respondent is directed to pay compensation of Rs. 4,00,000/- with 6% interest from the date of filing of the application before the Tribunal till date and 9% from today up to date of payment.