JUDGEMENT
1. This Civil Miscellaneous Appeal is filed by the Union of India owning Southern Railway by its General Manager, Chennai against the order dated 27.11.2008 made in OA.no.83/2007 by the Railway Claims Tribunal, Chennai Bench, thereby granting a sum of Rs.4,00,000/- as compensation with interest at 9 per cent p.a. from the date of the order till payment to the Respondents herein/claimants, who are the wife and minor children of the deceased Gnanamani, who succumbed to the injuries sustained in an 'untoward incident', which took place on 3.6.2006 between Wimco Nagar and Kathivakkam Railway Stations at KM11/14.
2. The claimants before the Tribunal contended that the deceased was a passenger in the EMU Train and he was travelling from Korukkupet on 3.6.2006 and due to overcrowding in the Train, he had accidentally fallen down from the train between Wimco Nagar and Kathivakkam Railway Stations at KM11/14 down line and sustained injuries all over the body and thereafter, he succumbed to injuries. According to the claimants, the deceased has purchased II Class Journey ticket to travel in the train, but the same was lost.
3. The Appellant defended the claim, disputing the version of the claimants that the deceased accidentally fell down due to overcrowding. It is stated in the counter that as per the message given by the Station Master, Thiruvotriyur, it revealed that one male dead body was lying at KM11/14 near the railway track. Without prejudice to the above said contentions, the Appellant submitted that the incident was not due to falling down from the sport, but it ought to have happened due to the negligence on the part of the deceased. Therefore, it is contended that the incident does not come under the purview of Section 123(c)(2) of the Railways Act, 1989 (herein after referred to as the Act) and it will only amount to 'self-inflicted injuries' for which the Railway Administration is not liable to pay compensation under the provisions of Section 124A of the Act. It was also contended that the deceased was not a bona fide passenger, since he did not possess a journey ticket.
4. As per Section 123(c)(2) of the Act, 'untoward incident' includes the accidental falling of any passenger from a train carrying passengers. Here, the dispute mainly pertains to the aspect as to whether the deceased accidentally fell down from the train due to overcrowding, as contended by the claimants. The fact of body of the deceased being found in the railway track at KM11/14 between Wimconagar and Kathivakkam Railway Stations is not disputed by the Appellant.
5. At the time of enquiry before the Tribunal, the 1st claimant herself examined as AW.1 and gave evidence in respect of the claim. She had marked Ex.A1 copy of the First Information Report, Ex.A2 copy of inquest report, Ex.A3 postmortem certificate and Ex.A4 final report. It appears from the contents of the First Information Report that the message had been received by that Station Master that a male dead body aged about 45 years was lying at KM11/14 down line. In the inquest report Ex.A2, in column 9, it is stated that deceased appears to have travelled in EMU Train at 3.6.2006 prior to 11.00 am and had accidentally fallen down between Wimconagar and Kathivakkam Railway Stations near the down line at KM11/14 and sustained grievous injuries on different parts of his body. The same is repeated in column 15 also. The inquest report reveals that the inquest was commenced on 3.6.2006 at 12.00 noon and concluded at 4.30 p.m. by the Sub Inspector of Police, Korukkupet Police Station. After investigation, a final report has been filed by the Sub Inspector of Police, Korukkupet Police Station in Ex.A4, wherein it is stated that the deceased had accidentally fallen down from one of the Emu Train and died on the spot.
6. The Railway Passengers (Manner of Investigation of Untoward Incidents) Rules, 2008 (herein after referred to as the Rules) deals with the manner of investigation done by the Railway Protection Force in respect of 'untoward incident. Rule 7 of the said Rules says that on receipt of information under Rule 6 from the Station Superintendent, an Officer of the Force shall carry out the investigation, shall obtain the copies of the inquest report, postmortem report, obtain information about the untoward incident, record statement of witnesses if so required and collect any other evidence required by the circumstances of the case. After completion of the investigation, he has to submit a report to the authority specified under sub rule 2 of Rule 10 of the said Rules. As per Rule 11, the Divisional Railway Manager, on receipt of the report, is required to examine the same within fifteen days and if he is satisfied that investigation is complete, he shall pass an order accepting the said report. In case, if he requires some more enquiry, then he shall refer the same back for investigation to the Officer of the Force along with his observation for further investigation. The final orders passed on the report by the Divisional Railway Manager shall be communicated to the Station Superintendent, who shall maintain the records and make necessary entries in the Station Diary to this effect as per Rule 12.
7. In the present case, the final report along with other record s has been filed by the Sub Inspector of Police, Korukkupet Railway Police Station, who has conducted the investigation and it appears that he has forwarded the same to the Senior Divisional Manager. In the report given by the Senior Divisional Manager, in column 6, it is stated that the deceased had fallen down from the moving train. The investigation report, postmortem report and the final report given by the Railway Police along with the report of the Divisional Railway Manager in no uncertain terms, have described the incident as death due to falling down from the train. Nowhere, they have suspected any foul play. When such fact emerges from the reports of the Railway Police itself, it was the duty of the Railways to lead evidence asserting that the death did not occur due to falling down from the train as appearing in those documents. The reply statement filed by the Railways contains only a formal denial calling upon the claimants to prove the allegations contained in the claim petition. But, however, a plea has been made that even if it is held that he had fallen down from the train, it is only due to the negligence on the part of the deceased. The documentary evidence filed by the claimants clearly proved that it is a case of accidental falling from the train. No material has been brought on record by the Railways to prove that it was not a case of accidental falling from the train.
8. There is admittedly no eye witnesses in this case and therefore, there is no evidence to support the case of the Appellant that the accident took place in the manner suggested by it. Secondly, if it were to be assumed that the deceased fell down from the train due to his own negligence, it will not have any effect on the compensation payable under Section 124A of the Act.
9. Section 123(c) of the act defines 'untoward incident' as follows:-
(c) 'untoward incident' means:-
(2) the accidental falling of any passenger from a train carrying passengers.
10. 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.
11. Section 123(c) of the Railways Act speaks about 'untoward incident' and Section 124A speaks about compensation on account of an 'untoward incident'. As per Section 123(c)(2) of the Railways Act, 1989, untoward incident includes the accidental falling of any passenger from a train carrying passengers. In the decision reported in 2002-1-KLT-678 (Joji C.JOhn Vs. Union of India), the Division Bench of the Kerala High Court held that where there is an 'untoward incident', even when no negligence is proved on the part of the Railway Officers, the Railway is liable to pay the compensation. Even if there is no negligence on the part of the Railway employees, it cannot be presumed that the injuries caused to the victim of the accident are self inflicted so as to deny compensation as provided under the Railway Accident and Untoward Incidents (Compensation) Rules, 1990. This view has been reiterated in the decision of the Honourable Supreme Court in 2008-2-KLT-700-SC (Union of India Vs. Prabhakaran Vijayakumar). Interpreting the term accidental falling of a passenger from a train carrying passengers, it is held that the term includes situation where a person is trying to board the train and falls down from the train while trying to do so. The Honourable Supreme Court held as follows:- In our opinion, if we adopt a restrictive meaning to the expression accidental falling of a passenger from a train carrying passengers' in Section 123(c) of the Railways Act, we will depriving a large number of railway passengers from getting compensation in Railway accidents. It is well known that in our country there are crores of people who travel by trains since everybody cannot afford travelling by air or in a private car. By giving a restrictive and narrow meaning to the expression we will be depriving a large number of victims of train accidents (Particularly poor and middle class people) from getting compensation under the Railways Act. Hence, in our opinion, the expression accidental falling of a passenger from a train carrying passengers includes accidents when a bona fide passenger i.e. a passenger travelling with a valid ticket or pass is trying to enter into a railway train and falls down during the process. In other words, a propulsive, and not literal interpretation should be given to the expression.
12. 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, investigation report and the final report submitted by the Railway Police coupled with the report of the Divisional Railway Manager, all in one voice concluding the case as an accidental fall from the train, 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 under Section 123 of the Act.
13. The further dispute of the Appellant is based on the plea that the deceased was not a bona fide passenger. The only ground, on which the contention is based, is that the train ticket was not produced in evidence and no ticket was found in possession of the deceased. The claimants had a specific case pleaded that the deceased was holding a journey ticket, but the same was lost in the accident. The burden is on the Railways to prove that the deceased is not a bona fide passenger. The normal presumption is that a passenger in a train holds a valid ticket.
14. Section 124(A) of the Act provides compensation on account of an untoward incident. It provides that when in the course of travelling in the train, 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 dependent of a passenger who succumbed to the injuries to maintain an action and recover damages in respect thereof, 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. While deciding a similar controversy in a case reported in 2009-1-TAC-644 (Akhtari Vs. Union of India) the Division Bench of the Allahabad High Court considered the provisions contained in Sections 123 and 124A and after considering various pronouncements of the Honourable Supreme Court , it has held that in the event of death of a travelling passenger, there shall be a presumption that the person travelling in the train was having valid ticket, unless the presumption is rebutted by Railways through cogent and trustworthy evidence.
15. This court in similar circumstances in the case of S.Poonkodi and others Vs. The Union of India, Southern Railway (CDJ-2007-MHC-3784) observed as hereunder:-
16. .... Moreover, if the deceased had travelled as a ticketless traveller, one would normally expect the railway authorities to have detected such ticketless travelling. When a person dies in an accident by falling down from train, it is not possible for the legal representatives to produce the ticket or valid authority to travel in the train. Depending upon the facts and circumstances of a given case, the Tribunal/ the appellate court infer about the deceased being a bona fide passenger. In the present case, facts and circumstances prima facie indicate that the deceased was a bona fide passenger, who lost his life in the railway accident.
16. At this juncture, it is also relevant to point to the observation made by the Honourable Supreme Court reported in AIR-2009-SC-2819 (Bimla Devi and others Vs. Himachal Road Transport Corporation and others), wherein while dealing with a claim arising under the Motor Vehicles Act, the Honourable Supreme Court observed that it was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants and the claimants were merely to establish their case on the touchstone of preponderance of probability. It went on to observe that the standard of proof beyond reasonable doubt could not be applied in the case of claim petitions.
17. It is no doubt true that the position of law as provided in Section 106 of the Evidence Act is that 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 the 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 given any such evidence nor as any person come forward to disclose as to what articles were found with the victim, I am of the considered view that the initial burden of providing the said fact had not been discharged. In such circumstances, in the absence of any evidence of the Railway Authorities asserting absence of valid ticket, I am of the opinion that there is no just reason to discard the evidence of the claimants. Therefore, the Tribunal is perfectly justified in rejecting the contention of the Appellant that the deceased was not a bona fide passenger. The Tribunal is perfectly justified in holding that the deceased died on account of the accidental falling from the train and therefore, I do not find any warrant for interference with the said findings.
18. In view of the discussions made above, I have no hesitation in holding that it is a case of death coming within the purview of untoward incident within the meaning of Section 124A of the Railways Act and therefore, the claimants are entitled to get compensation as provided in the Schedule to the Railway Accidents and Untoward (Incidents) Compensation Rules, 1990.
19. In the result, this Civil Miscellaneous Appeal is dismissed. It is seen from the records that the Appellant deposited the entire award amount with interest, the 1st claimant was already paid Rs.1,00,000/- and the share of the minor claimants was also already deposited. The 1st claimant is entitled to withdraw Rs.1,00,000/- with accrued interest. The 1st claimant is also entitled to withdraw accrued interest from the deposit of the share of minor claimants once in three months, till they attain majority. No costs. Consequently, the connected MP is closed.