Muhammed Kunju and Others vs Union of India (UOI)

K.A. Abdul Gafoor, J.—The dependents of a victim in a railway accident have come up with this appeal, as their petition for compensation was dismissed by the Railway Claims Tribunal Ernakulam. The untoward incident occurred on 16.8.1997, when the deceased Muhammed Ashraff was travelling in a train between Thiruvananthapuram and Karunagapally. He fell out of the train. The train was stopped. Immediately, he was taken to the hospital by the fellow passengers. On the way to the hospital he succumbed to the injuries. Compensation was claimed by the appellants. Necessary evidence to show that he was a passenger was produced in the form of Exh. P-5, a photocopy of the identity card issued by the Railways and Exh. P-6, the original thereof. The Tribunal found that the accompaniment to Exh. P-5, the season ticket, had not been produced and, therefore, it cannot be taken that he was a bona fide passenger. The claim petition was dismissed.

It is contended by the appellants that in the light of Exh. P-5, the claimants have discharged their burden to show that he had been a passenger in the train. In such circumstances, it is upon the Railways to show that he was not a bona fide passenger and that he did not have a ticket at the time of accident. That burden had never been discharged by the Railways. In support of this contention the decision reported in Joji C. John Vs. Union of India (UOI), , is relied on. It is further submitted that the Railways did not have a quarrel as to the fact that the death had occurred as a result of fall from a running train. Necessarily, in order to compute the compensation the Schedule to the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, as amended on 1.11.1997, on which date the claim petition was pending, shall have to be applied and being a case of death a sum of Rs. 4,00,000/- has to be awarded. The decision of the Tribunal has, therefore, to be reversed, it is urged.

It is contended on behalf of Railway Administration that Exh. A-6 does not contain the thumb impression or signature of the person to whom that identity card had been issued. Therefore, it is not a valid document. Moreover, Exh. P-6 as such does not have any validity unless it is accompanied by the season ticket. Necessarily, in the absence of the season ticket, Exh. A-6 does not have any validity by itself. So it does not prove that he was a passenger with a ticket at the time of accident. It cannot also be ruled out that there was no attempt of suicide to attract the proviso to Section 124-A of the Railways Act, 1989, contends the Counsel for the Railways.

Section 2(29) of the Railways Act, 1989 defines the ''passenger''. Passenger means a person traveling with a valid pass or ticket. The Railways have got the necessary process to exclude passengers without valid pass or ticket. In such circumstances, when a person had fallen from a running train, merely because there was no ticket in his bag or pocket it cannot be concluded that he was a passenger without ticket. The burden is, therefore, on the Railways to prove that he did not at the material time have a valid ticket or pass.

In this case, Exh. A-6 had been produced. It has been proved through PW 1, one of the brothers of claimant. There is no cross-examination disputing the validity or otherwise of Exh. A-6 nor the Railways adduced any evidence to show that it was a fake one. The Railways have no contention that Exh. A-6 could be issued without a season ticket. In the absence of that it has been proved through Exit. A-6 issued on 28.7.1997 that he was a passenger with a ticket. Necessarily, it would have been issued by the Railway Administration as an accompaniment to a valid railway pass. Exh. A-5 also bears a number. If it had been a false one, Railways can establish that fact easily based on the records kept by them. As Railways could not discharge that burden it can safely be concluded, on the strength of Exh. A-6, that the deceased had been a passenger with a valid ticket. At any rate the burden on the Railways remains undischarged.

The claimants had a case that the deceased had been a dairy commuter between Karunagapally and Thiruvananthapuram for the purpose of his employment. That Exh. A-6, identity card, has been issued to him on 28.7.1997 itself indicates that he must have been having a valid season ticket on that day. Necessarily, on the fateful day he must have been a passenger with a ticket.

There is no much quarrel for the Railways that an accident had not taken place. In such circumstances the death is as a result of an untoward incident defined in terms of Section 123(c)(2) of the Act

There is also no dispute with regard to the facutm of death. The Railways had also not adduced any evidence, much less made any pleading to bring the death within the proviso to Section 124-A. Necessarily, that exception is also not available to the Railways. Consequently, from the proved factum of death, the compensation is payable in terms of item No. 1 of the Schedule to the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990. Of course the Schedule was brought into force on 1.11.1997, few months later than the untoward incident in this case. But it has been held by this Court in the decision reported in Joji C. John v. Union of India (supra), following the Apex Court decision in Rathi Menon Vs. Union of India, , that the Schedule can be applied even to the cases pending as on 1.11.1997. The impugned order shows that the claim petition was pending as on mat date. Necessarily, the rate provided in the Schedule has to be applied. The appellants will, consequently, be entitled to an amount of Rs. 4,00,000/- with 8 per cent interest.

Appeal is allowed.