fa.76.12.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.250 OF 2011
Anil s/o Prabhakar Bhalerao,
Aged 50 years, Occ. Service,
R/o Sadguru Nagar, Near Samartha Wadi,
Badnera Road, Amraoti, Dist. Amraoti .... Appellant
-- Versus -
Union of India,
Through the General Manager,
Western Railway, Churchgate,
Mumbai - 400 020. .... Respondent
Shri S.K. Sable, Advocate for the Appellant.
Mrs. H.S. Dhande, Adv. h/f Shri N.P. Lambat, Adv. for the Respondent.
with
FIRST APPEAL NO.76 OF 2012
The Union of India,
General Manager,
Western Railway Churchgate,
Mumbai, CST. .... Appellant
-- Versus -
Anil s/o Prabhakar Bhalerao,
Age 49 years, Occ. Service,
R/o Sadguru Nagar,
Near Samartha Wadi, Badnera Road,
Dist. Amravati. .... Respondent
Mrs. H.S. Dhande, Adv. h/f Shri N.P. Lambat, Adv. for the Appellant.
Shri S.K. Sable, Advocate for the Respondent.
CORAM : KUM. INDIRA JAIN, J.
DATE : AUGUST 10, 2017. ::: Uploaded on - 16/08/2017 ::: Downloaded on - 18/08/2017 23:56:45 ::: fa.76.12.jud 2 COMMON JUDGMENT :-
Both these appeals take an exception to the judgment and order dated 29/09/2010 passed by the Railway Claims Tribunal, Nagpur (hereinafter referred to as 'Tribunal' for short) in Claim Application No. O.A.(IIu)/NGP/2010/0010. By the said judgment and order, application for compensation came to be partly allowed and Railway is directed to pay Rs.78,000/- along with interest at the rate of 6% per annum from the date of filing of application i.e. 11/01/2010 till the date of decision within two months failing which to pay compensation with interest @ 7% p.a. from the date of order till its realization. 02] The facts giving rise to these appeals may be stated in nutshell as under :
i. On 21/01/2009, applicant-Anil Bhalerao was travelling from Jalgaon to Nandurbar by Navjeevan Express. As general bogie of the train was crowded and there was no space, he boarded in ladies compartment of the train. Navjeevan Express stopped at Takarkheda Railway Station as Ahmedabad-Howrah Express Train ::: Uploaded on - 16/08/2017 ::: Downloaded on - 18/08/2017 23:56:45 ::: fa.76.12.jud 3 was passing over. That time, Guard on duty of Navjeevan Express asked male passengers to alight from ladies bogie. Applicant and other passengers requested the Guard to allow them to get down at the platform of Railway Station. As Guard refused for the same, applicant and other passengers got down from Navjeevan Express in open space.
ii. By that time, Ahmedabad-Howrah Express Train arrived at the spot and due to dash given by said Train to handbag of applicant, he fell down and sustained injuries on the toe of his left leg, right arm and right hand. He was admitted to Rural Hospital, Amalner. On the next day, applicant was discharged from Rural Hospital, Amalner. He got himself admitted to Suyash Hospital, Amravati, where he underwent surgeries on 24/01/2009 and 27/01/2009. Applicant then filed an application for compensation and claimed amount of Rs.2.50 lacs for the injuries sustained by him.
::: Uploaded on - 16/08/2017 ::: Downloaded on - 18/08/2017 23:56:45 ::: fa.76.12.jud 4 iii. Written Statement was filed and application was strongly objected. It was submitted that applicant did not suffer any injury in an untoward incident. The submission is that applicant boarded in ladies compartment and, therefore, he was asked to alight from the ladies bogie. It is submitted that applicant sustained self inflicted injuries and Railways can not be held liable in such circumstances. iv. To substantiate his case, applicant examined himself as AW-1. He also relied upon several documents including the medical papers. Respondent-Railway did not examine any witness. Considering the evidence of applicant and the documents relied upon, Tribunal came to the conclusion that the injuries suffered by applicant were not covered as per the notification and he would be entitled to Rs.78,000/- on pro rata basis. Accordingly, compensation of Rs.78,000/- with interest thereon was awarded to applicant. Having found the compensation awarded as inadequate, applicant has challenged the judgment ::: Uploaded on - 16/08/2017 ::: Downloaded on - 18/08/2017 23:56:45 ::: fa.76.12.jud 5 and award passed by Tribunal in First Appeal No.250/2011.
v. First Appeal No.76/2012 is by the Railways and the challenge is on the ground that application was not maintainable as alleged incident did not fall within the purview of Section 123(C)(2) read with Section 124-A of the Railways Act, 1989. It is contended that applicant was not a bona fide passenger and he was travelling without ticket. It is submitted that the Tribunal has failed to consider the evidence in proper perspective and came to wrong conclusion that applicant is entitled to compensation. vi. The submission of applicant/injured is that he was a bona fide passenger and purchased ticket to travel by Navjeevan Express. It is submitted that injuries sustained by applicant were covered as per the Schedule and though applicant was entitled to compensation of Rs.2.50 lacs, Tribunal awarded compensation on too lower side and, therefore, ::: Uploaded on - 16/08/2017 ::: Downloaded on - 18/08/2017 23:56:45 ::: fa.76.12.jud 6 impugned order being bad in law needs to be set aside.
03] Heard Shri S.K. Sable, learned Counsel for applicant/ injured and Mrs. H.S. Dhande, learned Counsel for Railways. The first and foremost question that arises for consideration is whether applicant suffered injuries in an untoward incident. Statement of applicant was recorded before police. He also examined himself before the Tribunal. The evidence of applicant is through out consistent and clearly indicates that before boarding the train he purchased a ticket. The said ticket is produced on record. It is not in dispute that applicant due to heavy rush in general compartment, boarded ladies bogie and he and other male passengers were asked to alight from the ladies bogie. It is an admitted fact that Navjeevan Express stopped at Takarkheda as another train was to pass through. That time, applicant was asked by the Guard to alight in the open space. After applicant got down from the train, another train passing over hit the bag of applicant. So applicant fell down and sustained injuries. It is crystal clear from the evidence of applicant that he suffered injuries in an untoward incident. It ::: Uploaded on - 16/08/2017 ::: Downloaded on - 18/08/2017 23:56:45 ::: fa.76.12.jud 7 is further established that he was a bona fide passenger and travelled in Navjeevan Express after purchasing a valid ticket. So far as the injuries are concerned, applicant has filed discharge card of Suyash Hospital. It shows that there were fractures of humerus shaft with radial nerve palsy (R) with fracture of shaft 2nd and 3rd M.J. (Lt.) foot. The discharge-card shows that applicant was indoor patient from 22/01/2009 to 29/01/2009. It can be seen from the medical papers that initially applicant was admitted to Rural Hospital, Amalner. Spot-panchnama, statement of applicant recorded by police, medical papers and disability certificate issued by General Hospital, Amravati showing 30% disability, fully substantiates the case of applicant that he sustained injuries in Railway accident. This overwhelming evidence negatives the contention of Railways that applicant suffered self-inflicting injuries. 04] The next question then arises is regarding quantum of compensation. In this connection, learned Counsel for applicant placed reliance on the judgments of the Hon'ble Apex Court in Rathi Menon vs. Union of India - [2001 ACJ 721] and of Calcutta High Court in Bandana Mishra vs. Union of India ::: Uploaded on - 16/08/2017 ::: Downloaded on - 18/08/2017 23:56:45 ::: fa.76.12.jud 8 [II(2017) ACC 484 (DB)(Cal.)] and submitted that applicant would be entitled to compensation as per amended Rules. Learned Counsel referring to the Gazette Notification dated 22/12/2016, which came into force from 01/01/2017 and based on Items 28 and 31, submitted that compensation awarded by Tribunal was not as contemplated in the Schedule. Item 28 relates to loss of all toes of one foot through the metatarso- phelangeal joint and Item 31 is regarding fracture of major bone humerus radius both limbs. Amount of compensation prescribed for injury as per Item 28 is Rs.1,60,000/- and for fracture as per Item 31 is Rs.1,20,000/-. Learned Counsel submitted that compensation needs to be awarded as per the amendment in the Schedule.
05] In the case on hand, it is evident from the medical papers that there was no loss of all toes of one foot of applicant. As per discharge-card of Suyash Hospital, one toe of left foot was injured. Applicant stated in his evidence that his left foot has lost all the functions and, therefore, on a pro rata basis, for fracture of shaft 2nd and 3rd M.J. (Lt.) foot joint, compensation came to be awarded to applicant. Similarly, Item 31 is regarding ::: Uploaded on - 16/08/2017 ::: Downloaded on - 18/08/2017 23:56:45 ::: fa.76.12.jud 9 fracture of major bone humerus radius both limbs. In the present case, injury was not to both the limbs but to one and, therefore, compensation was awarded on pro rata basis. 06] It can be seen from the reasons recorded by the Tribunal, quantum of compensation arrived at is based on oral and documentary evidence brought on record. Tribunal, on proper and legal appreciation of evidence and documents, assessed the quantum of compensation. The same is just and reasonable. As such, no fault can be found with the same. Applicant could not show that the injuries were covered by any of the Items of the Schedule. At the same time, Railway has failed to establish that applicant was not entitled to compensation and the quantum of compensation awarded was exorbitant.
07] In the above premise, both the appeals being devoid of substance and merits deserve to be dismissed. Hence, the following order :
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ORDER I. First Appeal Nos.250/2011 and 76/2012 stand dismissed.
II. No order as to costs.
(Kum. Indira Jain, J)
At this stage, learned Counsel for appellant-injured submits that Railway has deposited entire amount with the registry of this Court and injured be permitted to withdraw the same.
Permission to withdraw the amount for compensation, if so deposited, is granted to injured.
*sdw (Kum. Indira Jain, J)
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