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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
First Appeal No.111 of 2017
1] Smt. Gopika Champatrao Gandhare,
aged about 43 years, Occ.- Household,
2] Ku. Priyanka Champatrao Gandhare,
aged about 21 years, Occ.- Nil,
3] Ku. Pratiksha Champtrao Gandhare,
aged about 19 years, Occ.-Nil,
All R/o.- Yenapur, Tah. Chamorshi,
District Gadchiroli (M.S.). .... Appellants.
(Org. Applicant On R.A.)
-Versus-
Union of India,
through the General Manager,
Central Railway, Mumbai (CST) .... Respondent.
(On R.A.)
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Shri I.G. Meshram Adv. for appellants.
Shri N.P. Lambat, Adv. for respondent.
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Coram : N.W. Sambre, J.
th
Dated : 18
April, 2017.
J U D G M E N T
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2 fa 111.17 judg,.odt This appeal is by the claimants under the provisions of the Railway Claims Tribunal Act, 1987, questioning the legality and validity of the judgment and order delivered by the Nagpur Bench of the Railway Claims Tribunal in Claim Application No.OA(iiu)/NGP/2012/0326, wherein the claim for award of compensation of Rs. 4 Lakhs has been rejected by the Tribunal.
2] The facts which are relevant for deciding the present appeal are as under :-
Claimant no.1-Gopika is widow of late Champatrao, whereas claimant nos. 2 and 3 are the minor daughters. The application under Section 16 of the Railway Claims Tribunal Act, seeking compensation of Rs. 4 Lakhs came to be moved as Champatrao, died after having fallen down from the moving train bearing no.12723 A.P. Express. He tried to alight from the moving train at Ajni Railway Station where there was no scheduled halt. The incident claimed to have taken place on 14-12- 2010, in which the death of deceased occurred on the sport.
3] While claiming the compensation, it is also stated that, deceased Champatrao is a bona fide passenger of the train ::: Uploaded on - 31/05/2017 ::: Downloaded on - 27/08/2017 23:49:58 ::: 3 fa 111.17 judg,.odt and though he died while alighting from the train as such the said incident is covered under Section 123 of the Railways Act, 1989 as an "untoward incident". The claimants then alleged that looking to the nature of earning they are entitled for the compensation of Rs. 4 Lakhs.
4] Per contra, the learned Counsel for the respondent- Railway would urge that the deceased was not a bona fide passenger as no ticket was found in his body about his travel. He would then argued that there was a criminal act on the part of the deceased as he ought not to have alighted from the moving train when there was no scheduled halt at Ajani Railway Station.
5] In addition, Shri Lambat, the learned Counsel for the respondent-Railway would urge that the denial of compensation is based on the cogent reason particularly; he was found to be not in possession of ticket and as such sought dismissal of the appeal.
6] The learned Counsel for the respondent submits that as per impugned judgment and order dated 22-04-2015 tribunal dismiss the claim of the claimants, as the claimants have failed to prove the death of the deceased as an "untoward ::: Uploaded on - 31/05/2017 ::: Downloaded on - 27/08/2017 23:49:58 ::: 4 fa 111.17 judg,.odt incident" which has occurred while alighting from train and who was travelling without valid journey ticket. 7] In the aforesaid background of the submissions made by the respective Counsels, it is required to be appreciated that, in addition to the documentary evidence claimant no.1 is examined in support of the Claim Application, whereas other documentary evidence were placed on record. The respondent-Railway examined Guard of the train as (RW-1) and exhibited Guard Memo Book as (Exhibit-RW-1/1) so as to prove that there was no accident occurred. 8] On 10-04-2017, this Court directed the Police Authorities to produce on record the investigation papers in relation to the accident in question and has also appointed learned Advocate Shri Mishra to assist this Court in the matter. 9] The investigation papers and report depict that Police Constable B.C. No.659-Devidas while on duty submitted the written memo to Dy.S.S. on 14-12-2011 stating that "at Railway Station Ajani a person is run over by A.P. Express no.12723 when he was alighting from a moving train". Thereafter, Merg No.139/11 under Section 174 of the Code of Criminal Procedure was registered. Police Constable B.C. ::: Uploaded on - 31/05/2017 ::: Downloaded on - 27/08/2017 23:49:58 :::
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No.461-Surendra sent the body of the deceased for post
mortem. There was an enquiry as to whether the accident in question was untoward incident pursuant to the provisions of the Railway Passenger (Manner of Investigation of Untoward Incidents) Amendment Rules, 2003, initiated. Wherein, it is opined that, there was no railway ticket noticed on the body of the deceased and the train passed through Ajani Railway Station without hindrance. It is also stated in the said enquiry that in addition to the statement of guard that the train passed through Ajani Railway Station smoothly certain documentary evidence inter se between the department of Railway and the Investigating Officers depict of happening of the railway accident (untoward incident). It is then to be noted that the Inspector in-charge of Railway Protection Force Thana Ajani Railway has noticed that Head Constable S.J. Singh has witnessed the death of the victim when victim tried to alight from the moving train. Once the investigation papers which referred to above speak of the accident, in my opinion, the happening of the incident is very much proved which has to be treated as "untoward incident". Once it is proved that there was an "untoward incident" in which deceased has lost ::: Uploaded on - 31/05/2017 ::: Downloaded on - 27/08/2017 23:49:58 ::: 6 fa 111.17 judg,.odt his life whether he was entitled for a compensation in absence of having noticed that he was not holding any railway pass or railway ticket for travel, Shri Mishra, the learned Counsel appointed by the Court has rightly invited the attention of the Court in the judgment of learned Single Judge of this Court in First Appeal No.473 of 2010 delivered in the Union of India Vs. Bimala Tudu and others on 28-02-2012. According to him, if the ticket was not found that cannot be a ground for denial of the compensation. 10] Shri Lambat, the learned Counsel for the respondent- Railway has raised the said issue very effectively. However, it has to be noticed from the record that if the railway ticket or the railway pass was not noticed on the person of the deceased, it cannot be presupposes or presumed that the deceased was travelling without ticket and as such is not entitled for compensation. To draw such inference, the claimants herein cannot be asked to prove which is something impossible. Admittedly, the claimants are not the eye witnesses to the incident in question and as such it is really difficult for them to prove that the deceased at the relevant time was holding a valid ticket. ::: Uploaded on - 31/05/2017 ::: Downloaded on - 27/08/2017 23:49:58 :::
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11] Be that as it may, in view of the written memo submitted
by Head Constable S.J. Singh, who claims to be the eye
witness of the incident of the untoward accident, the fact remains that the deceased was travelling on the train for about last three hours before the accident and it is really difficult to presume that for three hours the train was not checked. Paragraph 13 of the judgment in the case of the Union of India cited supra is worth referring to :-
"13] Now, the question that crops for consideration is whether failure of the claimant/passenger to produce valid ticket would lead to a presumption that the passenger met with untoward incident and died was not an authorized passenger or was not holding a valid pass or ticket. To draw such inference, would be to expect from the dependents of the deceased to prove impossible. It is known fact that in such a long journey which consumes more than 15-16 hours, passengers are checked by ticket checkers and certainly more than once. In such circumstance, the fact that the deceased was not detected as passenger travelling without ticket, would give rise to an inference that he was travelling with valid ticket. Whether the deceased had purchased a valid ticket and what happened to that was a fact within his personal knowledge. Having regard to ::: Uploaded on - 31/05/2017 ::: Downloaded on - 27/08/2017 23:49:58 ::: 8 fa 111.17 judg,.odt the fact that the provision for compensation in the Railways Act is a beneficial piece of legislation it should received a liberal and wider interpretation and not a narrow and technical one. This has been observed by their Lordships in case of Union of India..vs.. Prabhakaran Vijaya Kumar, cited supra."
Apart from above, Shri Mishra, the learned Counsel (appointed) has rightly invited the attention of this Court to the fact that even if the deceased was enquired, that cannot be a ground for denying the compensation. The investigation papers as are produced and other material cannot take this Court to come to the conclusion particularly in the backdrop of the submissions canvassed by Shri Lambat, the learned Counsel for the respondent-Railway that there was any malice or intention on the part of the deceased to commit any criminal act. At least no such material is placed on record to infer that there was a criminal intention on the part of the deceased to commit any criminal act. 12] In addition to above, the fact remains that to prove the case that deceased was alighted from moving train and the said fact dis-entitled him for claiming compensation could ::: Uploaded on - 31/05/2017 ::: Downloaded on - 27/08/2017 23:49:58 ::: 9 fa 111.17 judg,.odt have been effectively proved by examining Head Constable Shri S.J.Singh who claims to be an eye witness to the incident as this Court noticed from the investigation papers. In the case in hand, neither the said eye witness was proved the written memo nor the evidence of Guard (RW-1) has been read down to me that the deceased was responsible for the accident in question. 13] In the aforesaid background, in my opinion, the judgment denying the claim for compensation is not sustainable and is required to be set aside. 14] It is then to be noted that the claimants in the Claim Application alleged that deceased Champatrao at the time of death was aged about 46 years and was doing labour work. It is also claimed in the Claim Application that the deceased was travelling with railway ticket and the said ticket was lost in an untoward incident. It is then claimed that the income of the deceased at the relevant time which prompts the claimants to be Rs. 4 lakhs.
15] The claimants by producing on record the relevant documentary evidence have already proved relationship as regards the untoward incident. In the aforesaid background, ::: Uploaded on - 31/05/2017 ::: Downloaded on - 27/08/2017 23:49:58 ::: 10 fa 111.17 judg,.odt in my opinion, considering the earning capacity of deceased to be Rs.1,500/- per day on the date of the incident and his age i.e. 45 years it will be appropriate to award compensation of Rs.2,25,000/- to the deceased. As such the appeal stands allowed in above terms.
16] The judgment and order dismissing the Claim Application No.OA(iiu)/NGP/2012/0326 on 22-04-2015 is hereby set aside and it is directed that the claimants will be entitled for the compensation of Rs.2,25,000/- i.e. Rs. 75,000/- for each of the claimants to be deposited by the respondent in this Court within period of three months from today along with interest at the rate of 7 % per annum from the date of lodging of the claim.
17] With above observations, the First Appeal stands allowed.
JUDGE Deshmukh ::: Uploaded on - 31/05/2017 ::: Downloaded on - 27/08/2017 23:49:58 :::