Union of India vs Rasathi and A. Sundarraj

Honourable Mrs. Justice Aruna Jagadeesan

This Civil Miscellaneous Appeal is filed against the order dated 28.05.2008 made in OA. No. 21/2005 by the Railway Claims Tribunal,

Chennai Bench, whereby the Tribunal awarded a sum of Rs. 4,00,000/- as compensation to the claimants. The claimants, who are the parents of

the deceased Nagaraj, filed the above said claim petition before the Tribunal claiming compensation for the death of their son. It was pleaded that

on 26.4.2007 prior to 1630 hours between Kadambathur and Chenji Panapakkam Railway Station at KM-47/26-27, the deceased travelled in an

electric train and fell down from the running train due to jolt and jerk and sustained injuries and died on spot and the same was informed to the

Railway Police, Rakkonam and thereafter, postmortem was conducted and the body was burried after observing formalities by the Railway Police,

Arakkonam. Only later, the claimants came to know about the incident, identified the deceased through photographs shown by the Police.

The Appellant in the reply statement opposed the claim made by the claimant. It was stated that the deceased was not a ''bona fide passenger''

and he fell down from the train on account of his own negligence and carelessness. The alleged incident is only an attempt to commit suicide and

trespass, for which the Appellant is not responsible. Therefore, the accident is due to the rash and negligent act of the deceased and it would not

attract the provisions of ''accidental falling from train'' under Sections 123(c)(2) and 124(A) of the Railways Act, 1989 (herein after referred to as

the Act).

The Tribunal, after analysing the entire evidence on record and after hearing the contention of both the parties, awarded a sum of Rs. 4,00,000/-

as compensation to the claimant by the impugned order, which is challenged in the Civil Miscellaneous Appeal u/s 23 of the Railway Claims

Tribunal Act 54 of 1987.

Mr. T.S. Rajamohan, the learned counsel for the Appellant submitted that no ticket was recovered from the deceased and the finding recorded

by the Tribunal that the deceased was a ''bona fide passenger'' on the relevant date is not supported by any evidence. He would submit that the

claimant had no personal knowledge about the facts and the statements made in the claim application appear to be hearsay. It was denied that the

deceased was having a valid ticket for travelling and that the accident occurred only on account of the negligence and carelessness of the

deceased, as it is only an attempt to commit suicide and trespass, for which, the Appellant is not responsible. Tribunal committed an error in not

considering above said aspects and in awarding compensation to the claimant.

Mr. T. Rajamohan, the learned counsel for the Respondents strenuously contended that the Tribunal has come to the right conclusion that the

deceased was a ''bona fide passenger''. The learned counsel would submit that the deceased having died in a horrible condition falling down from

the train, the ticket would have been lost in such a situation and the evidence placed on record clearly disclosed that the deceased died in the

course of travelling falling from the train and it is a clear cut case of death in an ''untoward incident''. The learned counsel further submits that the

burden was on the Appellant to prove that the deceased was not a ''bona fide passenger''. In the facts and circumstances of the case, the burden is

not discharged by the Appellant and therefore, the Tribunal was justified in drawing a conclusion that the deceased was a ''bona fide passenger''.

The learned counsel also pointed out that it is admitted that the deceased fell down from the train and therefore, this would come within the ambit

and meaning of ''untoward incident''. In support of his contentions, the learned counsel relied on the decision of the Honourable Supreme Court

reported in 2008 4 MLJ 323 SC (Union of India Vs. Prabhakaran Vijayakumar).

This court heard the learned counsel on either side and perused the records.

Section 124A of the Act provides 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.

By the Amendment Act 28 of 1994, clause (c)(2) was inserted in Section 123 of the Act, bringing the ''accidental falling of any passenger from

a train carrying passengers'' into the definition of ''untoward incident.''

From the above provision of the Railways Act, the points which are to be determined are that the person, who is claiming compensation for any

loss, damage, injury or death, was a bona fide passenger having a valid ticket and sustained injury or death, as the case may be, in an ''untoward

incident''. ''Untoward incident'' should not fall within the exceptions (a) to (e) of proviso to Section 124A of the Act and the ''accidental fall'' would

include a passenger trying to alight a train, board a train, or any other like action, and he would be covered by ''untoward incident'' as specified in

Section 123(c) of the Act. Therefore, while boarding the train, due to jerk of the train if a person falls from the train and sustains injury or dies, it

cannot be held that due to his own negligence or carelessness he sustained injury or died and the burden lies on the Railways to prove that the

person met with an accident or death due to his own negligence thereby not entitled to compensation from the Railways.

In the case of Union of India Vs. Kurukundu Balkrishnaiah (2004 ACJ 529 AP), a Full Bench of the Andhra Pradesh High Court answered to

the following reference whether a passenger trying to board or alight from a running train or standing near the door, jumped from the compartment,

crossing the railway track or leaning out of the carriage; and during the course of such circumstance had fallen down and was either injured or had

died, was entitled to compensation from the Railways u/s 124A of the Railways Act, 1989. The court while answering the reference has held that

(1) where a bona fide passenger dies in an untoward incident or sustain 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 the proviso to Section

124A of the Act; (2) accidental 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)(2) of the Act. To attract any of the exceptions u/s 124A 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.

In the present case, it has been proved from the investigation of the Railway Police itself that the victim died of the accident due to fall from the

train. In view of existence of First Information Report, inquest report, postmortem report, death certificate and the final report submitted by the

Railway Police all in one voice concluded the case as an accidental fall from the train and without any material to indicate or infer any foul play or

any collusive act, the Railways cannot contend that it is not an accidental fall from the train. The accident did not occur because of any of the

reasons mentioned in clauses (a) to (e) of the proviso to Section 124A of the Act. Therefore, the case of the claimant would fall under the category

of ''untoward incident'' as defined u/s 123 of the Act.

It is no doubt true that no ticket was recovered from the body of the deceased. I am conscious of the position of law that as provided u/s 106

of the Evidence Act, if a fact is within the special knowledge of a person, the burden of proving such fact is on that person and as provided in

illustration (b) of that Section, if a person is charged with travelling on a railway without a ticket, the burden of proving that he had a ticket is upon

him. But, such principle is not applicable to a case of a dead person who was proved to have died in course of railway travel and whose body was

taken in custody of the Railway Police. In such a situation, it is the duty of the railway authority to first give evidence that he was without a valid

ticket and if such evidence is given, the onus shifts upon the claimants to prove that he was a bona fide passenger having a valid ticket. In this case,

as no person on behalf of the Railways has come forward to disclose what articles were found with the victim, when they recovered the body, the

initial burden of proving such fact had not been discharged. In the absence of such evidence, the benefit has to be given to the dependent of the

deceased and the Tribunal, rightly has come to the conclusion that the deceased was a bona fide passenger on the relevant date.

The findings of the Tribunal regarding the factum of incident to death of the deceased and the claimants are the dependents of the deceased are

not under challenge. The main contention is as to whether the death of the deceased would come within the ambit and purview of the expression

''untoward incident''.

On a perusal of the relevant provisions referred supra, it is manifest that the said provisions are a part of the beneficial and welfare statute,

these provisions are intended for the benefit of the person who has died in such contingency. The Railways Act has defined the term ''untoward

incident''. By perusal of the said definition of ''untoward incident'', it is eloquent that the said definition is an inclusive definition and it also includes

an accidental fall of any passenger from a train carrying passengers. When a person is travelling in the train and falls down, that would certainly

come within the purview of the accidental fall from a train. When we say that the provisions are part of a welfare statute, then the rules of

interpretation mandate that the interpretation of the said provision shall be made in consonance with the object of the Act and for the benefit of the

person for whom the Act was made. The beneficial or a welfare statute should be given a liberal and not literal or strict interpretation.

The Honourable Supreme Court in 2008 4 MLJ 323 SC (Union of India Vs. Prabhakaran Vijayakumar), cited supra involving similar question

of interpretation of Section 123(c) of the Railways Act, 1989 has observed thus:-

No doubt, it is possible that two interpretations can be given to the expression ''accidental falling of a passenger from a train carrying passengers'',

the first being that it only applies when a person has actually got inside the train and thereafter falls down from the train, while the second being that

it includes a situation where a person is trying to board the train and falls down while trying to do so. Since the provision for compensation in the

Railways Act is a beneficial piece of legislation, in our opinion, it should receive a liberal and wider interpretation and not a narrow and technical

one. Hence, in our opinion the latter of the above mentioned two interpretations, i.e. the one which advances the object of the statute and serves its

purpose, should be preferred.

The conspectus of the above discussions would lead to the conclusion that if a section in a welfare statute is reasonably capable of two

constructions, then that construction should be preferred which furthers the policy of the Act and is more beneficial to those in whose interest the

Act may have been passed and the doubt if any should be resolved in their favour. So in a case of an exception which curtails the operation of

beneficent legislation, the court in case of doubt would construe it narrowly so as not to readily expand the area of scope of exception. Once it is

held that the fall of the deceased was a result of untoward incident, the claimant would be entitled for compensation.

For the reasons stated herein above, I do not find any merits in this Civil Miscellaneous Appeal and the impugned award is liable to be

confirmed.

Aruna Jagadeesan, J.

Srcm

In the result, this Civil Miscellaneous Appeal is dismissed. The impugned award is confirmed. No costs. It is seen from the records that the entire

award amount had already been deposited on 23.10.2009 with the Indian Bank, High Court Branch. As per the order dated 26.02.2010 in MP.

No. 1/2010, the claimants were permitted to withdraw 50 percent of their respective share with proportionate interest, which they have

withdrawn. The remaining amount of Rs. 2,00,000/- is lying with the Indian Bank, High Court Branch. The claimants 1 and 2 are permitted to

withdraw balance of Rs. 1,00,000/- each with proportionate interest. No costs.