Damodaran Nair vs Union Of India

C. Pratheep Kumar, J

This appeal has been preferred under Section 23 of the Railway Claims Tribunal Act, 1987 against the order dated 31.8.2018 in O.A.(llu) ERS/0012/2018 on the file of Railway Claims Tribunal, Ernakulam Bench, dismissing the above application.

The appellants are the parents of deceased Ullas V.Nair, who allegedly died in an untoward incident by falling from a moving train. According to the appellants, the deceased Ullas was working as a Supervisor in a hotel. On 4.4.2017 he was travelling from Kollam to Goa in Veravel Express. At about 4.00 a.m. when the train reached near Kannapuram railway station, he fell down from the train and sustained injuries and succumbed to the injuries. On the ground that he had died in an untoward incident, the appellants approached the Railway Claims Tribunal, Ernakulam claiming compensation. The Tribunal dismissed the application on the ground that the deceased was not a bona fide passenger mainly on the ground that journey ticket was not recovered from the deceased. Aggrieved by the above order, they preferred this appeal raising various contentions.

According to the learned counsel for the appellants, failure to produce the journey ticket alone cannot be considered as a ground to hold that the deceased was not a bona fide passenger. The learned counsel would argue that there was some time gap between the incident and the time when the police party found out the victim and in the meantime, somebody had searched the pockets of the pants of the deceased and at that time, the ticket might have been lost. Therefore, according to the learned counsel for the appellants, this is a clear case of untoward incident and as such, the appellants are entitled to get the compensation as per the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990.

On the other hand, the learned Central Government Standing Counsel Sri.S.Biju, who appeared on behalf of the respondent would argue that there are no valid grounds to interfere with the finding of the Tribunal. Therefore, he prayed for dismissing the appeal.

Now the points that arise for consideration are as follows :-

(i) Whether the finding of the Railway Claims Tribunal that Ullas V.Nair was not a bona fide passenger, is correct ?

(ii) Whether the impugned order passed by the Tribunal is liable to be interfered with in the light of the grounds raised in the appeal?

Heard both ides.

The points :- In the report of DRM, the cause of death as stated in the postmortem report is given as “died due to head injury”. Final report filed by the local police, Kannapuram, after conducting investigation, is to the effect that the deceased Ullas V.Nair was travelling along with his friend Adarsh from Thrissur to Goa by train No.16334 Veravel Express in general compartment. Both of them consumed alcohol before boarding the train and while on journey in frequent intervals. As per the statement given by Adarsh, the deceased was sitting on the foot-board of the train by keeping his legs stretched outside. After the train passed Kannapuram railway station, Ullas V.Nair fallen down from the train. In the DRM's report also, it is concluded that the deceased had fallen down from the train at about 3.40 hours on 4.4.2017, sustained injuries and succumbed to the injuries.

The father of the deceased was examined as AW1. In the proof affidavit he would swear that while the deceased was travelling along with his friend in Veravel Express from Kollam to Goa with valid ticket at about 4.00 am on 4.4.2017, he had fallen down from the train, sustained injuries and succumbed to the injuries. The respondent has not adduced any evidence in this case.

It is true that the appellants could not produce the journey ticket of Ullas. At the time of inquest, the police recovered some of the belongings of the deceased which does not contain any ticket. It was in the above context that the Tribunal concluded that the deceased was not a bona fide passenger. However, from the statement given by Adarsh to the Sub Inspector of Kannapuram police station, it can be seen that Ullas travelled in the train after purchasing valid ticket. He also stated that the bag of Ullas was found inside the train compartment where it was kept and the belongings of the deceased were recovered from the above bag. The statement given by Adarsh further states that when the train was moving, Ullas fell down from the train and sustained injuries.

10.At the time of evidence it is revealed that during the journey in the train, Ullas V.Nair and his friend consumed alcohol. Therefore, it was argued that it is a case coming under proviso (b) to Section 124A of the Railways Act which states that no compensation shall be payable under Section 124A of the Railways Act if the passenger dies or suffers injury due to any act committed by him in a state of intoxication or insanity.

11.On the other hand, the learned counsel for the appellant relied upon the decision of a Division Bench of this Court in Babu K. and Another v. Union of India [2017 (4) KHC 137 ] and argued that mere consumption of alcohol is not sufficient to bring a person under the above exception. In the above decision, the Division Bench held that :-

“ The expression “intoxication” which is greater in gravity has to be understood under this perspective, rather than a mere “drunkenness”. Further the expression “intoxication” has to be read along with the purpose of the Section as it is an exception attached to Section 124A which is resting on the principle of non-fault liability in the grant of compensation to the victim who suffered injury or death due to an untoward incident as defined under the Act. So, “intoxication” must have a dominant role in the real cause of untoward incident. In other words, “intoxication” represents the state of the victim at the time of incident, due to consumption of alcohol or drugs which lead to him/her as victim to the incident. The initial burden to prove the role of intoxication in causing the accident is on the Railway/respondent. So we are of the view that the judgment rendered by the Tribunal does not reflect the proper application of the law in force.”

12.As per the above decision, the initial burden is on the Railway to prove the role of intoxication in causing the accident. In the postmortem report, the doctor reported that stomach of the deceased was empty. In this case there is absolutely no evidence to show that the deceased was under the influence of alcohol at the time of the incident. Therefore, the respondent is not entitled to rely upon the benefit of the proviso to Section 124A of the Railways Act.

13.The presumption is that a person travelling in a train carrying passengers is a bona fide passenger with valid ticket. The deceased, along with his friend Adarsh, was travelling from Thrissur to Goa in Veravel Express train. After the train passed Kannapuram railway station, Ullas fell down from the train, sustained injuries and died. During the course of the journey, the officials of Railway have not found that Ullas travelled in the train without any valid ticket. If a passenger travels in a train without valid ticket, it is the duty of the Railway authorities to find out the same and to take necessary steps in that respect. Having failed to do so, the Railway authorities cannot contend that since the appellants could not produce the ticket of the deceased, he was travelling without valid ticket.

14.On the other hand, when the Investigation Officer was examined as CW1, he deposed that the pockets of the victim's pants were seen searched by somebody, before he reached there in 20 minutes. Therefore, there is reason to suspect that after the incident and before the police reached the spot, somebody came there and searched the pockets of the deceased. In the above circumstance, missing of the ticket from the possession of the deceased can be due to the intervention of any such person.

15.The finding of the Tribunal that Ullas V.Nair was not a bona fide passenger for the mere reason that the appellants could not produce the valid journey ticket, is unsustainable. On the other hand, from the available evidence, it is to be concluded that Ullas V.Nair was travelling in Train No.16334 as a bona fide passenger with valid ticket and while so, he had fallen down from the train and died. Therefore, it is a clear case of untoward incident as defined under Section 123 (c) of the Railways Act, 1989 and as such the appellants, who are the parents of the deceased, are entitled to get the compensation as provided under the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990.

16.As per the schedule to the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, the compensation payable for death w.e.f. 01.01.2017 is Rs.8,00,000/-. In the instant case, the incident was on 04.04.2017 and as such the appellants are entitled to get a compensation of Rs.8,00,000/-. The principles to be followed for ascertaining the quantum of compensation are given by the Hon'ble Supreme court in the decisions in Union of India v. Rina Devi [2018 (2) KHC 920] and in Union of India v. Radha Yadav [2019) 3 SCC 410].

17.In the light of the above decisions, for the above compensation of Rs.8,00,000/-, they are also entitled to get interest at the rate of 6% per annum from today till realization from the respondent. The respondent is directed to deposit the amount within a period of two months from today.

The appeal stands disposed of accordingly.