1. Applicants in O.A.(IIu)/ERS/17/2020 on the files of the Railway Clams Tribunal, Ernakulam Bench have filed this appeal aggrieved by the judgment dated 14.11.2023 by which the application for compensation filed under Section 16 of the Railway Claims Tribunal Act was dismissed.

2. The appellants approached the Tribunal seeking compensation from the respondent for the death of late Mr.Aboobaker.V.K., husband of the 1st appellant and the father of the 2nd appellant. According to the appellants, on 1.9.2019, when the deceased was waiting for train at Aluva Railway Station with a valid ticket, an express train having no stoppage at Aluva station passed through the first platform and hit the deceased resulting in his death. Claiming that the death was an untoward incident, the appellants sought compensation.

3. The respondent Railway resisted the claim by contending that the deceased was not a bonafide passenger but a trespasser. According to the Railway he was hit by the train while crossing the railway track. Hence the Railway contended that the appellants were not eligible to get compensation. During trial the 1st respondent was examined as AW1. Exts.A2 to A12 were marked on the side of the appellants. In this case also the Tribunal adopted the practice of marking the proof affidavit as a document, Ext A1, contrary to the relevant Rules. On the side of the respondent, RW1 and RW2 were examined and the DRM report was marked as Ext.R1.

4. On conclusion of evidence, the Tribunal analysed the case and passed the impugned order rejecting the application for compensation.

5. I have heard the learned counsel for the appellants Adv.Anwar.C.K. and the learned Central Government Counsel Adv.Vishnu Pradeep. I have also carefully perused the impugned judgment and the records.

6. The Tribunal rejected the application mainly for two reasons. It concluded that the deceased was not a bonafide passenger and refused to accept the case of the applicants that the deceased had purchased a valid ticket and the same was recovered from his bag. Next, the Tribunal concluded that the deceased was crossing the Railway track at the time of the accident. Now I shall analyse whether the conclusions and findings of Tribunal are sustainable and whether any interference is called for in this appeal.

7. The learned counsel for the appellants submitted that the applicants had produced the valid ticket obtained by the deceased, that was recovered from his bag before the Tribunal and the Tribunal went wrong in disbelieving the same. He submitted that the ticket was handed over to the brother of the deceased by police after obtaining a kaichit from him. Along with the ticket some other articles were also handed over. The kaichit was produced before the Tribunal. However, the Tribunal refused to rely on the same unjustly. He submitted that perusal of the ticket would show that the same was issued from Aluva Railway Station on the date of accident. He argued that the conclusions of the Tribunal on the aspect as to whether the deceased was a bonafide passenger or not are perverse and illegal. The learned counsel further submitted that the deceased was on Platform No.1 at the time of the accident, and this was spoken to by RW1, the only eyewitness. He pointed out that in the cross-examination of RW1, initially he stated that the deceased was on the platform and later in answer to another question by the counsel for the Railway he answered that the deceased was crossing the track. The learned counsel submitted that in the nature of the injuries sustained by the deceased it can be presumed that he was on the platform and was hit by the train from his backside. The learned counsel submitted that the deceased had not made any attempt to cross the track and the said version of the Railway is not supported by any evidence. He therefore submitted that the applicants were undoubtedly entitled for compensation.

8. The learned Central Government Counsel Sri.Vishnu Pradeep supported the impugned judgment. He pointed out that the ticket produced was not a reserved ticket. Such a ticket could be purchased by anyone. He submitted that there is no material to show that the ticket was recovered from the body of the deceased or from his bag. He hence submitted that the version of the applicants that the deceased had purchased the ticket cannot be believed. He argued that the Tribunal rightly found that production of the kaichit signed by the brother of the deceased was only an attempt to make it appear that the deceased had valid ticket and it was handed over to the brother of the deceased by police. The learned Central Government Counsel submitted that the kaichit produced was a photocopy not signed or sealed by any police officer. He hence submitted that there is every reason to suspect that the same is not genuine. The learned Central Government Counsel further pointed out that RW1 has stated in unmistakable terms during his cross-examination that the deceased was crossing the railway track. The learned CGC hence submitted that the deceased was injured while committing the offence of encroaching onto the railway track. He pointed out that trespassing into railway track is an offence punishable under Section 147 of the Railways Act. As the deceased was involved in a criminal offence, the applicants are not entitled to claim compensation. He referred to the DRM Report and pointed out that the conclusion in the report was that the deceased was crossing the track when he was hit by the train. The learned CGC hence submitted that there is no illegality in the impugned judgment and the appeal was liable to be dismissed.

9. The Tribunal, in the impugned judgment, has recorded that the ticket was not recovered from the body or bag of the deceased. It further concluded that in all probability the kaichit produced during the course of trial as an additional document was fabricated. In this connection a substantial oversight has happened on the side of the Tribunal. Along with DRM report a copy of the case diary in Crime No.1429/2019 of Aluva Police Station registered in connection with the death of Aboobaker was also produced by the respondent. The case diary forms part of the record in the OA. I have examined the copy of the case diary. In the case diary, the kaichit, copy of which was produced by the appellants as an additional document during the course of trial finds a place. The said kaichit was incorporated in the case diary by the S.I. of Police, Aluva East Police Station. It is stated in the kaichit signed by the brother of the deceased that the back-pack bag of the deceased, dress found in the bag, pass books of Canara Bank and Union Bank, the railway ticket issued from Aluva Railway Station as well as a Nokia mobile handset were received by him from Aluva East Police Station. As the said kaichit forms part of the case diary maintained by Investigating Officer of Kerala Police, genuineness of the same cannot be doubted. It is also relevant to note that the said document forms part of the DRM report produced by the Railway before the Tribunal. This was not noticed by the Tribunal. The Railway has actually built up its case on the basis of the DRM report. Without spending time to peruse the records in order to arrive at a right conclusion, the Tribunal regrettably held that the kaichit was concocted and blamed the applicants. The said erroneous conclusion shows that the Tribunal did not examine the records appropriately. It is to be noted that the ticket was issued from Aluva Railway Station after 9 pm for travelling from Aluva to Eraniel. The Railway does not dispute the validity of the ticket. Hence, the conclusion of the Tribunal that the deceased had entered the premises of the railway station without a ticket and he cannot be considered as a bonafide passenger is perverse.

10. Next aspect to be considered is as to whether the deceased was hit by the train while he was crossing the track as alleged by the respondent. RW1 is the only eyewitness. Perusal of his cross-examination recorded by the Tribunal shows that he stated initially in answer to a court question that deceased was coming from platform No.1 and was walking towards Aluva side. Then a non-stop train came and to alert the deceased, he blew the whistle. The deceased did not listen and got bumped by the running train. In answer to question No.4, RW1 stated that the deceased was on the platform. Later, in answer to question No.14, he stated that the deceased was crossing the track. As the Tribunal follows the practice of not recording the questions, this Court is incapacitated from understanding real context of answer Nos.4 and 14 which are seemingly contradictory. However, the answer No.2 given to the court question gives the impression that the deceased was walking on platform No.1 and was moving towards Aluva side of the platform when the train entered the platform. There is no evidence to firmly conclude that the deceased was crossing the track when he was hit by the train. True that RW2 asserted in his evidence that the deceased was crossing the track. However, he was not a witness to the incident. Therefore, his evidence cannot be relied on to decide whether the deceased was actually crossing the track. RW1, the sole eye-witness had given a statement to police which is available in the case diary of Kerala Police produced along with the DRM report. RW1 stated to police that he noticed the deceased walking through the steps provided at south end of the platform No.1 to enter into the railway track. He further stated that he blew his whistle to alert the person to move away from the steps leading to the railway track in order to avert danger. The same would show that the deceased had not in fact entered the track. If the deceased had not entered the track, it cannot be said that he had committed the offence punishable under Section 147 of the Railways Act. In my considered view, for the reasons stated above, the conclusion of the Tribunal that the deceased was crossing the track at the time of accident is also not sustainable. The Tribunal referred to the answer of RW1 to question No.14 only and ignored his replies to the court question and question No.4. It also failed to take note of his statement given to police. Thus, the Tribunal erred in entering into findings against the applicants on this aspect too.

11. It is clear from the evidence that the deceased had purchased a valid ticket to travel to Eraniel and was waiting in Platform No.1. Cross examination of RW1, when considered along with his statement recorded by Kerala Police which is available in the case diary forming part of the DRM report would show that the deceased had not entered the railway track when he was hit by the train.

12. Upshot of the above discussion is that the accident was an untoward incident and the deceased was a bonafide passenger. Therefore, the appellants are entitled for compensation. The respondent shall pay an amount of Rs.8 lakhs as compensation to the appellants. The respondent shall also pay interest at the rate of 6% from the date of accident. The amounts due under this judgment shall be paid to the appellants within two months.

                  Appeal is disposed of as above.