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Judgment
Honourable Mrs. Justice Aruna Jagadeesan
This Civil Miscellaneous Appeal is filed against the order dated 23.4.2009 made in OA. No. 75/2006 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 wife and daughter of
the deceased R.Selvamani, filed the above said claim petition before the Tribunal claiming compensation for the death of the deceased. It was
pleaded that the deceased was working as Coolie at Chenna. He used to travel from Gumidipoondi to Chennai and return to Gumidipoondi in
EMU train by purchasing ordinary ticket. The deceased left the house on 30.9.2006 and did not return. The claimants after three days of search
came to know that the deceased, who travelled on 30.9.2006 in EMU train and when the train was proceeding near Athipatty Railway Station,
accidentally fell down and suffered injuries and he was admitted in the Government Hospital, Chennai on 30.9.2006 and in spite of treatment, he
died on 1.10.2006. The claimants came to know about the death of the deceased only on 30.10.2006 and identified the deceased by
photographs.
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.. 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'' u/s 123(c)(2) 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. The claimants have not
stated in the application the exact train or the nature of the incident and the claimants filed the claim application based on the statements made in the
inquest report and not on any facts. 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 and therefore, the alleged incident is not covered u/s 123(c) and 124A of the Railways
Act. The Tribunal committed an error in not considering above said aspects and in awarding compensation to the claimants.
Mr. T. Rajamohan, the learned counsel for the 2nd Respondent 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 the deceased travelled and fell down from the train at KM-21/06 near AIP Railway Station, as it is
admitted in the report of the Divisional Railway Manager 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, must be 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.
Falling from train to death due to one''s own negligence does not come within any exception enumerated u/s 124(A) of the Act. In the absence
of malicious intent or mens rea, such negligence can neither be held as criminal act u/s 124(A)(c). In Jameela and Others Vs. Union of India (UOI),
the Honourable Supreme Court has held thus:
The manner in which the accident is sought to be reconstructed by the Railways, that the deceased was standing at the open door of the train
compartment from where he fell down, is called by the Railways 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 Railways must fail even after assuming everything in
its favour.
In the present case, it has been proved from the report of the Divisional Railway Manager that the deceased travelled and fell down from the
train at KM-21/06 near AIP Railway Station. It is seen from paragraph 9 of the inquest report that after the deceased became unconscious, the
Railway Protection Force with the help of Station Master, Athipattu Railway Station, stopped TN.6596 (Patna-Bangalore Express) had carried
the injured and admitted in the Government Hospital on 30.9.2006 at 14.45 hours as IP.No.841996, where without responding to the medical
treatment, the deceased died on 1.10.2006 night 23.15 hours. In the final report, the Police have concluded the case as ''train accidental death''. 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 concluding 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 dependent of the deceased are
not under challenge. The only 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. In the result, this Civil
Miscellaneous Appeal is dismissed. The impugned award is confirmed. No costs. In pursuant to the conditional order dated 20.7.2009 passed in
MP. No. 1/2009, the Appellant had deposited the entire award amount with interest to the credit of OA. No. 75/2006 and the 1st claimant was
permitted to withdraw Rs. 1,00,000/-, which she had withdrawn. The remaining amount of Rs. 1,00000/- and Rs. 2,00,000/- being the share of
minor claimant are lying to the credit of OA. No. 75/2006. The 1st claimant is permitted to withdraw another Rs. 1,00,000/- with accrued interest.
The share of the minor 2nd claimant of Rs. 2,00,000/- shall be invested in any one of the Nationalised Bank till she attains majority. The 1st
claimant is permitted to withdraw accrued interest from the deposit of the minor claimant once in three months. No costs.