S MARIAYAYI Vs. UNION OF INDIA

JUDGEMENT

(1.) THE appellant herein is the petitioner in Claim petition No. 50 of 1965 before the claims Commissioner, Southern Railway Madurai. The said claim was made by the petitioner as a dependant of one Michael, who lost his life while he was traveling in the ill-fated train which was washed away between Rameswaram and Dhanushkodi on the night of 22-12-1964. Her claim for compensation of Rs. 8,000 as arising out of the death of her husband was rejected by the Claims Commissioners on the ground that it has not been established that the deceased Michael was a bona fide passenger within the meaning of Section 82-A of the Indian Railways Act and as such the petitioner as his dependant was not entitled to any compensation. The decision of the Claims Commissioner is challenged in this appeal.

(2.) THE petitioner's husband, the deceased Michael, was working as a Greaser in the ship 'irwin' and his work spot was at Mandapam though his residential quarters were at Dhanuskodi. After his duty was over at 5 p. m. on 22-12-1964 he seems to have taken the duty pass from the Serang of the ship and left Mandapam railway station at about 6 p. m. by the ill-fated train to Dhanushkodi. At the time when the train was a proceeding from Rameswaram road to Dhanushkodi the mishap occurred and the train was washed away. The Claims Commissioner found that the petitioner's husband did in fact travel in the ill-fated train and lost his life in the accident. But on the question whether he is a bona fide passenger as contemplated in S. 82-A of the Indian Railways Act, the Claims Commissioner held that though he had travelled in the train with a duty pass, the pass which was used cannot be said to be a proper pass and that, therefore, he should be treated as a persons who traveled without proper authority and therefore a trespasser.

(3.) THEREFORE, the only question that has to be considered in this appeal is whether the duty pass used by the deceased while travelling in the ill-fated train was a proper pass as defined in Section 3 (15) of the Railways Act. On this aspect of the matter, we have to consider the evidence of P. Ws. 2, 3 and 4 and R. W. 1, P. W. 2 was a fireman in the ship called "irwin" on 22-12-1964 and he speak to the fact that after his duty was over the deceased was waiting for the train at Mandapam station to go to Dhanushkodi and that he was having with him a duty pass. However, he admitted in cross examination that though himself and the deceased were residing in the quarters given to them at Dhanushkodi, no residential card passes were issued to them and that they were usually either travelling with duty pass or by purchasing tickets to go to Dhanushkodi. P. W. 3 is the Serang of the ship and he deposed that he gave the duty pass to the deceased to go to dhanushkodi after his duty was over at 5. p. m. on 22-12-1964, that he saw the deceased in the station and that he had requisite working under him. He has however admitted in cross-examination that it was not necessary to take the prior permission of the Chief Engineer for giving the duty pass to persons working under him, that all the passes were in his custody and that he was not, however, maintaining any register as to whom the duty pass was given. He also admitted that the duty pass should be used only when the person is on duty but somehow the practice was to give passes to persons to go to their places and that he followed that practice in giving the duty pass to the deceased. He further admits that no residential pass was issued for the use of the workers to go to their quarters. P. W. 4 who was also a Greaser in the ship 'irwin' at Mandapam, has deposed that the deceased asked the Chief Engineer to grant him leave for christmas at 4-30 p. m. on 22-12-1964, that the Chief Engineer asked him to enquire from the Chief Engineer of the Ship 'goshan' whether any body in that ship wanted to go on leave and said that he will decide about granting leave afterwards. He also stated that the Chief Engineer directed the deceased to take the pass from Serang and that he took the duty pass accordingly. The Chief engineer of the ship 'irwin' has been examined as R. W. 1. He specifically denies that the deceased approached him for grant of either permission or leave. He also denied that he permitted the deceased to use the duty pass nor authorised the serang of the ship for handing over the duty pass to the deceased. He states that there was only one duty pass available in the ship between Mandapam and dhanushkodi and it is given to the workers when they go on duty that normally the duty pass will be either with him or with his assistant, the second Engineer, that sometimes it might be left with Serang but the Serang was not authorised to issue the pass to any worker without his permission. He specifically stated that the duty pass could not be used by the workers for going to their place of residence and that normally a man going on duty to Dhanushkodii would take the pass and give that pass to the Chief Engineer of the other ship at Dhanushkodi to enable some worker from that ship to go to Mandapam and that the pass could be used by an employee if his duty was over. In the light of the above evidence it has to be considered whether the deceased was an authorised person to travel with the duty pass.