CMA.No.28 of 2018

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON

:

08.02.2023

PRONOUNCED ON

:

06.06.2023

CORAM:

THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN

CMA.No.28 of 2018

S.Kuppuswamy

Appellant

Vs

The Union of India, owning Southern Railway

by General Manager, Chennai-3

Respondent

Prayer:- This Civil Miscellaneous Appeal has been filed, against the judgement,

dated, 18.07.2017, made in OA (II-U)3/2017, by the Railway Claims Tribunal,

Chennai Bench.

For Appellant

:

Mr.S.Umapathy

For Respondent

:

Mr.Vijay Anand, Standing Counsel

JUDGEMENT

1. This Civil Miscellaneous Appeal has been filed, by the claimant, against the

judgement, dated, 18.07.2017, made in OA (II-U)3/2017, by the Railway

Claims Tribunal, Chennai Bench.

2. The Appellant, who is the father of the deceased, namely, K.Harikrishnan, has

filed the claim petition before the Tribunal, seeking a compensation of

Rs.4,00,000/-, for the death of the deceased, who died in an untoward

incident of accidental fall from a train on the night in between 17/18^th June,

2016. The claim petition was resisted, on various grounds, by the

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CMA.No.28 of 2018

Respondent, by filing a reply. On the side of the Appellant, Ex.A1 to Ex.A6

were marked. Finding that the deceased was not a bona fide passenger, the

Tribunal has dismissed the claim application. Hence, this appeal has been

filed by the claimant.

3. This Court heard the learned counsel for the Appellant and also perused the

entire materials placed on record.

4. According to the Appellant, since the incident falls within the definition of

'untoward incident' under Section 123(c) of the Railways Act, the Tribunal

ought to have allowed the claim application and without considering the

settled principles laid down by various Courts, the Tribunal had dismissed the

application, erroneously shifting the burden of proof on the Appellant

regarding the status of 'bona fide passenger'. Though no ticket was

recovered from the deceased during the investigation, since admittedly he fell

down from the train and died, he was a bona fide passenger and as such, the

Applicant is entitled to get compensation. Reliance is placed on the decision

reported in 2019 3 SCC 572 (Union of India Vs. Rina Devi).

5. According to the Respondent, the deceased was not a bona fide passenger

and the incident is not an 'untoward incident' and the alleged incident is an

instance of self-inflicted injuries and the deceased died only due to his own

negligence and hence, the impugned order, rejecting the claim application, is

proper.

6. Section 123(c) of the Railways Act reads as under:-

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CMA.No.28 of 2018

(c) “untoward incident” means—

(1) (i) the commission of a terrorist act within the meaning of sub-

section (1) of section 3 of the Terrorist and Disruptive Activities

(Prevention) Act, 1987 (28 of 1987); or

(ii) the making of a violent attack or the commission of robbery or

dacoity; or

(iii) the indulging in rioting, shoot-out or arson, by any person in or on

any train carrying passengers, or in a waiting hall, cloak room or

reservation or booking office or on any platform or in any other place

within the precincts of a railway station; or

(2) the accidental falling of any passenger from a train carrying

passengers.

7. 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 ot