Allowed

Shri Venkatesh K R v. the Union of India

Karnataka HC25 Jul 2024MFA/4699/2018

Case brief

AI extract

What is this about?

Appeal against dismissal of a railway accident injury claim by the Tribunal on grounds of inconsistencies and absence of ticket. Holding that mere absence of ticket does not defeat a claim once the claimant files an affidavit, and the Railways failed to investigate or rebut evidence, the High Court set aside the dismissal and awarded compensation with interest to the deceased claimant's heirs.

What did the court decide?

Tribunal's order set aside; claimants awarded Rs.6,40,000/- with 6% p.a. interest from date of claim petition till realization, disbursed 50/25/25 among appellants within four weeks.

Shri Venkatesh K R Vs the Union of India — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:29637-DB MFA No.4699/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF JULY, 2024

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PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO. 4699/2018 (RCT)

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BETWEEN:

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SHRI VENKATESH K R SINCE DEAD BY HIS LR’S

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SMT. SUSHEELA W/O LATE VENKATESH K.R AGED ABOUT 42 YEARS

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MASTER. SACHIN S/O LATE VENKATESH K.R AGED ABOUT 17 YEARS SINCE MINOR REPT. BY HIS MOTHER SUSHEELA

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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SMT. M.N. INDIRA M/O VENKATESH K.R W/O R. NARASIMHA MURTHY AGED ABOUT 58 YEARS

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ALL ARE R/AT NO 225, 4^TH CROSS MADAKARI NAYAKA ROAD LAKSHMIPURA, BANGALORE – 560019 …APPELLANTS

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(BY SRI. ADINARAYANAPPA.,ADVOCATE)

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AND:

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THE UNION OF INDIA SOUTH-WESTERN RAILWAYS HUBLI- 580031 REPT BY ITS GENERAL MANAGER …RESPONDENT (BY SRI. KUSHALAPPA B M.,CGSC)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 23(1) OF THE RAILWAY CLAIMS TRIBUNAL ACT, 1987 PRAYING TO SET ASIDE THE ORDER DATED 23/03/2018 PASSED IN OA II U 066/2017, ON THE FILE OF RAILWAY CLAIMS TRIBUNAL (BANGALORE BENCH), BANGALORE, DISMISSING THE CLAIM APPLICATION AS PER FINDINGS AND SPEAKING ORDER.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND

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HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

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Challenging the dismissal of his claim petition under Section 16 of Railway Claims Tribunal Act, 1987 (for short ‘the Railway Claims Tribunal Act’), claimant in claim application No.OA II U 066 of 2017 on the file of the Railway Claims Tribunal, Bengaluru Bench (for short ‘the Tribunal’), has preferred this appeal.

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During the pendency of this appeal, original appellant died. His wife, minor son and his mother came on record and prosecuting the appeal.

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Claimant filed claim application No.OA II U 066 of 2017 before the Tribunal seeking compensation of Rs.20,00,000/- contending that his right hand was amputated

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in a train accident during the course of his journey as passenger.

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Case of the appellant in brief is as follows:

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The appellant is a cook by profession. On 25.06.2016 he had gone to Shivmoga for cooking work. As he could not get work, on the same night at about 10:40 p.m he boarded the train from Shivmoga to Bengaluru. The coach he boarded was crowded. Therefore, he was standing near the door of the coach. Due to the crowd, he fell down on the track and came under wheels. His right hand was amputated and he lost consciousness. When he regained conscious, he found himself in Mc.Gann hospital, Shivmoga. His father, on information, came to Shivmoga, got him discharged from the said hospital. Then he was shifted to Victoria hospital, Bengaluru and he underwent surgery in the said hospital. Due to the accident, he suffered permanent disability. While traveling, he lost his train ticket along with his belongings.

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Respondent contested the petition denying all the allegations. It was further contended that the claim petition is not covered by Sections 123(c) or 124-A of the Railways Act, 1989 (for short ‘the Railways Act’).

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Before the Tribunal, the claimant was examined as AW.1 and on his behalf Ex.A1 to A10 were marked. Respondent did not adduce any evidence nor submit any investigation report.

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The Tribunal on hearing the parties by the impugned judgment and order, rejected the claim petition on the ground that there are material inconsistencies in the petition and evidence regarding age of the claimant, time and place of occurrence of the incident. Therefore, case of the claimant cannot be believed. The Tribunal further held that there is no railway record of journey or journey ticket therefore, claim does not sustain. Challenging the said order, the above appeal is preferred.

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Submission of Sri. Adinarayanappa, learned Counsel for the appellant:

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(i) The documents produced before the Tribunal as well as discharge summary of Mc.Gann hospital produced before this Court clearly show that the claimant was admitted into the hospital with a history of traumatic amputation of right upper limb in train accident and when he was brought to the hospital, he was unattended and he was in a deranged mental state.

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Even when he gave evidence, he was not in fit condition and he

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was not able to recollect the date and places.

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(ii) Ex.A7 clearly shows that age of the claimant was 39 years and his father's age was 65 years. The age was wrongly entered in medical records. In Ex.A8 the discharge summary issued by Victoria hospital, the age of the victim was shown as 40 years. The Tribunal should have pragmatically assessed the evidence.

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(iii) If really there was no accident, the respondent authorities should have submitted the statutory investigation report as required under Rule 13 of Railway Passengers (Manner of Investigation of Untoward Incidents) Rules, 2003 (for short "Rules 2003"). The respondent did not even adduce any evidence. The Tribunal without appreciating the evidence on record and applicable law has rejected the claim petition which has led to injustice. Hence, impugned award is liable to be set aside.

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Submissions of Sri.Kushalappa B.M., learned Central Government Standing Counsel for the respondent:

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There were material inconsistencies in the petition, the records produced by the claimant and his evidence

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regarding date, time, place of accident and his age etc.,. Basically, there was nothing to show that he was an authorized passenger. Therefore, the Tribunal was justified in rejecting the claim petition.

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On considering the submissions of both sides and examination of the records, the point that arises for determination is "Whether the Tribunal was justified in rejecting the claim petition of the appellant?"

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ANALYSIS

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The claim petition was under Section 16 of the Railway Claims Tribunal Act. The claimant contended that on 25.06.2016 at 10:40 p.m. an untoward incident took place near old railway station, Shimogga. He claimed that when he was travelling in second class general compartment, he fell down from the moving train and suffered injuries. He contended that between 26.06.2016 and 06.07.2016 he was treated in Mcgann Hospital, Shimogga and later on learning about the incident his father Narasimhamurthy came and shifted him to Victoria Hospital.

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The Tribunal rejected the petition on the grounds that the claim does not fall under definition of untoward

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incident, the same has not taken place in the railway premises

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and secondly that the claimant was not able to produce the journey ticket and could not name the train number or its name. Reading of Section 123(c)(2) of the Railways Act shows that the definition of untoward incident includes the accidental falling of any passenger from a train carrying the passengers. It does not indicate that the incident should happen within the railway premises only. The Tribunal holds that the claimant has failed to prove that he was a passenger within the meaning of Section 2(29) of the Railways Act, which states that passenger means the person travelling with the valid pass or a ticket.

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On whom the burden of proving that the person is a valid passenger and how that stands discharged was dealt by the Hon'ble Supreme Court in Union of India v. Rina Devi¹ . In para 29 of the said judgment, the Hon'ble Supreme Court held as follows:

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"29. We thus hold that mere presence of a body on the railway premises will not be conclusive to hold that injured or deceased was a bona fide passenger for which claim for compensation could be maintained. However, mere absence of ticket with such injured or deceased will not negative the claim that he was a

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1 (2019) 3 SCC 572

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bona fide passenger. Initial burden will be on the claimant which can be discharged by filing an affidavit of the relevant facts and burden will then shift on the Railways and the issue can be decided on the facts shown or the attending circumstances . This will have to be dealt with from case to case on the basis of facts found . The legal position in this regard will stand explained accordingly."

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(Emphasis supplied)

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Reading of the above paragraph shows that mere absence of the ticket with the injured will not negative his claim of being a bona fide passenger. He can discharge the initial burden by filing the affidavit of the relevant facts. If that is done, then the burden shifts to the Railways to show that claimant was unauthorized passenger or he was not travelling or the incident was not an untoward incident.

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In the light of above principles this Court has to examine whether the claimant had discharged his initial burden?

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Ex.A1 the non-cognizable report was registered by Shimogga Railway Police themselves. Ex.A1 shows that the same was registered on 28.06.2016 on the intimation by Casualty Medical Officer of Mc-gann Hospital. In column No.5 of

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the said document, it is stated that as per the report the claimant fell down from the running train on 26.06.2016 in Vidyanagar railway station and he was admitted in Mc-gann Hospital. Ex.A2 is the medico legal intimation sent by the Medical Officer of the Mc-gann Hospital. Ex.A2 shows that the same was received in the police station on 28.06.2016 at 1:45 p.m. Ex.A3 the wound certificate is issued by the Medical Officer of Mc-gann Hospital states that the victim was brought with the history of accidental injury when his right hand stuck in the railway wheel on 26.06.2016 at 6:30 to 7 p.m. The above documents go to show that within a short time there was intimation to the Railway Police that the victim suffered injuries in railway accident.

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Before this Court, the appellant's counsel filed IA.No.1/2024 under Order XLI Rule 27 of CPC along with the Discharge summary and copy of entire case sheet issued by Medical Supervisor of Mc-gann Hospital. The OPD card shows that when the claimant was taken to the hospital he had no attenders from his family or friends. That goes to show that there was no scope for the appellant to manipulate the records. Further, the case sheet shows that by the time the victim was

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taken to the hospital his right upper limb was already auto amputated and the history was recorded as accidental injury. On the same day between 6:30 to 7:00 p.m. the victim was taken to the hospital. The OPD records and case sheet show that victim had suffered traumatic injury. Apart from amputated right upper limb, he had suffered other injuries like cut lacerated wound on the scalp (the top of the head) at temporal regions, abrasions on the face.

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The records show that when claimant was admitted into the hospital, his parameters were low and he was irritable and blood transfusion was done to him. The note dated 27.06.2016 by the orthopaedic doctor to the RMO of Shimogga Hospital shows that till 27.06.2016 no attenders or relations of the victim had come and his general condition was not satisfactory. The note in the case sheet dated 27.06.2016 given to psychiatrist by the attending doctor shows that the victim was referred to psychiatrist on the ground that the state of mind of the victim is disoriented and he shall be examined. The examination report of the psychiatrist shows that the victim was poorly oriented and some medicines were prescribed for that. The case sheet dated 06.07.2016 also shows that the

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patient's general condition was poor, he was semi conscious and disoriented. That further shows that the patient's attender came on that day at 1:45 p.m. and he was discharged. There is no reason to disbelieve the aforesaid documents or to rely on them for the purpose of this case. The records of the Tribunal show that the face sheet of the discharge summary was produced before the Tribunal, but that was not marked. Therefore, the production of the present documents is not total new introduction and that can be permitted to achieve the end of justice. Ex.A8 face sheet of the discharge summary of Victoria Hospital shows that the victim was admitted into the said hospital on 07.07.2016 and discharged on 27.07.2016. The above records clearly show that the victim was at the mercy of the doctors and hospital staff and there was nobody to identify him. That goes to show that such entries regarding the date, time and place of the accident or manner of the accident were made on the basis of the information given by such disoriented injured person. Therefore, some inconsistencies might have occurred. However, statement regarding suffering injuries due to train accident was consistent.

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There is material (Exs.A1 and A2) to conclusively

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show that on 26.06.2016 itself train accident intimation was given by Mc-gann Hospital doctors and a case was registered on 28.06.2016. It is hard to imagine that in such a condition the victim weaves up a story of train accident, taking advantage of injuries suffered by some other cause. Appellant had filed the affidavit to that effect before the Tribunal. Therefore, by such evidence, the claimant discharged his initial burden in terms of the judgment of the Hon'ble Supreme Court in Rina Devi's case referred to supra. Then the burden shifts to the respondent to rebut such evidence.

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Though in the railway police station a case was registered regarding the train accident, the respondent did not conduct any investigation as required under the provisions of Rules 2003. They show that whenever an untoward incident is reported, mandatory investigation has to be conducted. Rule 10 of the said Rules shows that on conducting such investigation, the railway police shall forward the report to the Magistrate. Reading of Rules 11 to 13 of Rules 2003 show that if there is any doubt about the occurrence of the incident, the higher authority shall conduct further investigation and shall submit

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the report to the claim office of the Zonal Railways within 15 days. Nobody was examined on behalf of the respondent to explain why such action was not taken. It appears only during the course of argument, it was contended before the Tribunal that since the incident was not an untoward incident, no investigation was conducted. What can be gathered from the impugned order is that during the course of the argument before the Tribunal, it was submitted on behalf of the respondent that as the incident had not occurred in the railway premises and the untoward incident was not reported, such investigation was not conducted. Such submission is apparently contrary to Ex.A1. By such compliance of rules and by non examination of any person to rebut the evidence lead by the claimant, it can be said without any hesitation that the respondent failed to rebut the evidence adduced by the claimant.

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Having regard to such circumstances and the later judgment of the Hon'ble Supreme Court in Rina Devi's case referred to supra , the judgment in Nathi lal's case referred to supra relied on by the learned counsel for the respondent as well as the Tribunal cannot be followed. Therefore, the finding

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of the Tribunal that the claimant failed to prove that he suffered

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injuries in an accident is unsustainable.

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The next question is, since the claim petition was

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filed seeking damages for the personal injuries suffered by the claimant, on his death whether the cause of action survives to his family members?

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First of all Rule 26 of Railway Claims Tribunal (Procedure) Rules, 1989 provides that on the death of the claimant during the pendency of the proceedings before the Tribunal, the legal representatives may come on record and continue the proceedings. Further, Hon'ble Supreme Court in the judgment in Oriental Insurance Company Limited v. Kahlon @ Jasmail Singh Kahlon² while dealing with the similar case in road traffic accident held that " actio personalis moritur cum persona " does not apply to such cases as they are the welfare legislations. The Hon'ble Supreme Court in that judgment accepted the principle followed by the Division Bench of Gujarat High Court in Surpal Singh Ladhubha Gohil v. Raliyatbahen Mohanbhai Savlia and Others³ that the question as to whether injury was personal or otherwise is of no

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2 Civil Apeal No.4800/2021 dated 16.08.2021

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3 2009(2) GLH 217

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significance so far as the wrong doer is concerned and is obliged to make good the loss sustained by the injured. It was also held that the legal heirs and the legal representatives would also suffer considerable mental pain and agony due to the accident caused to their kith and kin. In the judgment of the Rajasthan High court in Ranjeet Singh v. Union of India⁴ , in a case of railway accident itself relying on Rule 26 it was held that the cause of action survives to the dependents defined under Section 123 of the Railway Act.

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Then the third question is what would be the compensation payable to the claimants/appellants? It was contended that the accident has taken place in June 2016. At that time, as per entry No.1 in Part III of schedule of the Railway Accidents and Untoward Incidents Compensation Rules, 1990 (for short "Rules 1990"), the compensation payable was Rs.3,20,000/-, but the whole schedule was substituted by the amendment in GSR 1165E dated 22.12.2016 with effect from 01.01.2017. As per the said substitution, for the said injury the compensation payable is Rs.6,40,000/-. The claim petition in this case was filed on 17.04.2017 therefore, the substituted

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4 2022(3) RLW 2442 (Raj)

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rules were in force. Even otherwise substitution means that

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takes effect from the date of the original rules. Therefore, the claimants are entitled to compensation of Rs.6,40,000/-. In para 30 of the judgment in Rina Devis's case referred to supra , the Hon'ble Supreme Court laid down the law that on such compensation interest payable is 6% per annum. Therefore, the claimants are entitled to compensation of Rs.6,40,000/with interest thereon at 6% from the date of the claim petition till its realisation. Hence, the following:

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ORDER

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IA.No.1/2024 and the appeal are hereby allowed with costs.

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The impugned order of the Tribunal dismissing the claim petition in OA.II U 066/2017 is hereby set aside.

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The claim petition is partly allowed. Claimants together are awarded compensation of Rs.6,40,000/- with interest thereon at 6% p.a. from the date of the claim petition till its realization.

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Since the accident has occurred more than eight years back and the claimants/appellants have suffered all these years, it would not be just to order for investment of

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compensation amount in fixed deposit etc. It is appropriate to release the entire amount to the claimants/appellants subject to the appellants furnishing proof of appellant No.2 attaining majority. Further, the claimants shall furnish the details of their nationalized/scheduled bank accounts. On furnishing such particulars, the respondent shall disburse the amount in the ratio of 50%, 25% and 25% to appellant Nos.1 to 3 respectively within four weeks.

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Sd/JUDGE

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Sd/JUDGE

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PKN,ABK List No.: 1 Sl No.: 10

Shri Venkatesh K R v. the Union of India

Case brief

What is this about?

What did the court decide?

Shri Venkatesh K R v. the Union of India

Case brief

What is this about?

What did the court decide?

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