fa-j 337-10 .odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO. 337 OF 2010
The Union of India
General Manager
Central Railway
Mumbai CST. ....... APPELLANT.
(Ori. Defendant)
...V E R S U S...
1] Shri. Jagganath Shankarrao Piske
Aged about 70 years, Occ.: Labour
2] Smt. Rukshmanibai Jagganath Piske
Aged about 65 years, Occ.: Household
R/o Talmod, Taluka Umarga
District Usmanabad. .......RESPONDENTS.
(Ori. Applicants)
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Shri. N. P. Lambat, Advocate for Appellant.
Shri. S. K. Sable, Advocate for Respondents.
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CORAM: DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J.
DATE : 1 st JULY, 2017.
ORAL JUDGMENT This appeal is preferred under Section 23 of the Railway Claims Tribunal Act, 1987 for quashing and setting aside the order passed by the Railway Claims Tribunal, Nagpur Bench in Claim Application No. 51/OA-II/RCT/NGP/2007 dated 30.9.2009, thereby awarding compensation of Rs.4,00,000/- to the respondents-applicants.
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fa-j 337-10 .odt 2 2] Brief facts of the appeal can be stated as follows:-
Deceased Kiran was the son of respondent nos. 1 and
2. He was working as teacher in the school at Aurangabad. On 1.10.2006 he had gone to Bhusawal to meet his friend for his persons work and then after purchasing the ticket from Bhusawal Railway station, he was returning to Nashik by train No. 1382 UP. During the course of journey due to sudden jerk, Kiran fell down at Km. No. 420/2-24 between Bhadli and Jalgaon railway station. He sustained severe injuries and died on the spot. His ticket however, got lost in the accident. The respondents, therefore, claimed compensation of Rs.4,00,000/- on account of the loss suffered by them due to his untimely death.
3] The appellant herein resisted the said application by raising the contention that the alleged incident was not an 'untoward incident' within the meaning of Section 123(c)(2) of the Railways Act. It was submitted that the cause of accident was the self-inflicted injury on the part of deceased as he was careless and negligent in crossing the railway track and hence, he was run over. It was therefore, submitted that railway authorities are not ::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 08:36:34 ::: fa-j 337-10 .odt 3 at all liable to compensate the respondents, especially when deceased was not a bona fide passenger and cause of accident was also not 'untoward incident' within the meaning of Section 123(c) (2) of the Railways Act.
4] In support of their claim, respondent no.1 examined himself whereas on behalf of appellant one witness by name S. Narayan was examined. Both the parties relied upon documentary evidence and on appreciation of said evidence, the learned trial Tribunal was pleased to hold that the cause of death was 'untoward incident', as deceased has fallen from the running train and hence, railway administration was liable to pay compensation of Rs.4,00,000/- to the respondents.
5] This finding of the Tribunal is the subject matter of this appeal. According to learned counsel for appellant, the Tribunal has committed a grave error in not appreciating the evidence on record properly. It is submitted that sans any evidence on record proving that deceased has purchased the ticket and therefore, was the bona fide passenger and further in absence of evidence proving that he was travelling in the train, the ::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 08:36:34 ::: fa-j 337-10 .odt 4 Tribunal has held the Railway administration responsible for his death. According to learned counsel for appellant, the evidence of Loco Pilot, S. Narayan clearly goes to prove that deceased suddenly came in front of engine, as a result, he was run over by the train. Thus, according to learned counsel for the appellant, when there is no cross-examination of this witness and his evidence has remained unchallenged on record, the Tribunal could not have held the railway administration responsible for the accident that has occurred.
6] Per contra, counsel learned for resppondnts has supported the impugnd judgment of the Tribunal by submitting that evidence on record sufficiently proves that deceased was travelling in the said train and as a result of accidental fall from the train, his death has occurred.
7] In the light of these rival submissions advanced before me, two issues that arise for my determination are to the effect, whether it is proved that deceased has died in an 'untoward incident' and secondly whether at the time of accident he was a bona fide passenger?
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fa-j 337-10 .odt 5 Section 123(c) of the Railways Act, 1989 defines 'untoward incident' as follows:
Section 123(c) "untoward incident" means-
(1)(i) the commission of a terrorist act within the meaning of sub-section (1) of section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or
(ii) the making of a violent attack or the commission of robbery or dacoity; or
(iii) the indulging in rioting, shoot-out or arson, by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station; or (2) the accidental falling of any passenger from a train carrying passengers, Whereas Section 124-A defines the liability of railway administration to pay compensation in case of such 'untoward incident'. This section along with proviso lays down as follows:
124A... Compensation on account of untoward incident:-
When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident.::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 08:36:34 :::
fa-j 337-10 .odt 6 Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to-
(a) suicide or attempted suicide by him;
(b) self-inflicted injury;
(c) his own criminal act;
(d) any act committed by him in a state of intoxication or insanity;
(e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident.
Explanation.- For the purposes of this section, "passenger" includes-
(i) a railway servant on duty; and
(ii) a person who has purchased a valid ticket for traveling, by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.] Therefore, if respondents succeed in proving that the death of deceased was on account of accidental fall from the train, then it will amount to an 'untoward incident'. The burden will be then shifted on the appellant, to bring its case within any of the five Exceptions provided in (a) to (e) of section 124-A of the Railways Act. The burden will be again on the appellant-railway administration to prove that deceased was travelling without valid ticket.
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fa-j 337-10 .odt 7 8] Here, in the case, the defence of railway administration is specific that deceased was not at all travelling in the said train and while he was crossing the railway track, he was run over. Now, coming to the evidence of respondent no.1 herein, he has deposed that deceased Kiran was his son and he had gone to Bhusawal from Aurangabad to meet his friend. Since he could not meet his friend at Bhusawal, he decided to go to Nashik to meet his another friend. Hence, after purchasing ticket from Bhusawal Railway station for Nashik, his son informed on phone to his brother Umesh that by train no. 1382 Up he is going from Bhusawal to Nashik. However, due to unexpected and sudden jerk, his son fell down from running train between Bhadli and Jalgaon Railway stations and sustained injuries. 9] In his cross-examination he has admitted that Kiran had told his elder brother Umesh on phone that as he wanted to gather money for his bail, he was going to meet his friend at Nashik. Further he has admitted that he has not witnessed the incident. He even does not know as to whether Kiran has purchased the railway ticket. He has denied the suggestion that Kiran committed suicide or his death was on account of being 'run ::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 08:36:34 ::: fa-j 337-10 .odt 8 over' by the railway.
10] Thus, if his evidence is considered, then it is clear that he was neither an eye-witness to the deceased purchasing ticket or even to the incident which has resulted into the death of deceased. Whatever knowledge he had about the deceased going from Bhusawal to Nashik, it was derived from his son Umesh. According to him, deceased had made phone call to Umesh. However, respondents have not examined Umesh to prove that deceased had boarded the train to Nashik from Bhusawal and he has purchased the ticket. There is no other oral or documentary evidence adduced on record by the respondent on this aspect. 11] The documentary evidence on which the reliance is placed is the memo sent by Dy. Station Superintendent, Jalgaon, which is produced on record at AW-1/1. It is of the same date of the incident and in the said memo it is categorically stated that he had information in respect of one unknown person being run over by the train. The said memo nowhere shows that the said person has fallen from the train, so that it can be called as an 'untoward incident'.
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fa-j 337-10 .odt 9 12] Another document which is produced on record is the report submitted by Jalgaon Railway police and produced at AW-2. It is of the next date of the incident and it is also to the effect that one person was 'run over' under the running train and, therefore, accidental death be registered under Section 174 of the Code of Criminal Procedure. Even in the letter sent along with dead body for post mortem, there is mention that the deceased was 'run over' under the running train. The contents of inquest panchnama are also to the similar effect that cause of death was found to be deceased being run over by the train. The contents of spot panchnama are also to the effect that the information was about one person being 'run over' by the train. 13] Thus, the contemptorous documents which are produced on record clearly give the immediate version of the incident as the deceased being run over by the train. None of these doucments contain a whisper that deceased has fallen from running train and thereafter, run over by the train. 14] The affidavit evidence of S. Narayan who was the ::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 08:36:34 ::: fa-j 337-10 .odt 10 Loco Pilot on the concerned train also goes to show that when the train was passing from home signal at KM 420/22-24 where the accident took place, he was continuously blowing horns as one person suddenly came in front of the engine and as a result, the said person was run over by the train. He has immediately applied the air brakes. At that time, the speed of his train was 70 to 80 KMPH. He immediately informed the said fact to the duty Station Master, Jalgaon on walky-talky, then he stopped his train at Jalgaon, made a diary entry of the said incident in Driver's Memo Book which is also produced on record as Annexure-R-1. He has also stated that due to dash of said unknown person, the CBC Operating Engine Handle was bent. Therefore, he was advised to take assistance of Traction Loco Controller, Bhusawal for attendance of mechanical stafff at Manmad Station. Accordingly, the mechanical staff has attended the train engine at Manmad Railway Stationand repaired the handle.
15] In his further oral evidence he has also deposed that when the train was progressing on track towards Jalgaon railway station, one person was going by the side of the track, he suddenly came in between the tracks. He saw that person from the distance ::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 08:36:34 ::: fa-j 337-10 .odt 11 of 50 meter. He continuously blew whistle of the trian but said person failed to remove himself from the track; as a result the incident has occurred. He has informed about the same on walki- talki.
16] It is pertinent to note that this witness is not cross- examined on behalf of respondents. As a result, his evidence has remained unchallenged on record and as stated above, it is also supported with contemporous documents which are maintained in the official public record by the police and railway administration in the coure of duty. Therefore, there is no reason to disbelieve this documentary evidence which sufficiently proves that the cause of death was deceased himself coming on the track and despite blowing of whistle by the Loco Pilot S. Narayan, deceased has failed to remove himself; as a result, he was dashed by the train. In such situation, his death comes within exception (b), as provided in the Proviso to Section 124-A as self-inflicted injury. In case of such self-inflicted injury, which in this case can also be a case of suicide, the railway administration cannot be held liable and needs to be exhonerated from the liability of paying any compensation to the respondents.
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fa-j 337-10 .odt 12 17] The perusal of the judgment of Tribunal reveals that the Tribunal has not at all considered these aspects of the case and discarded evidence of Loco Pilot S. Narayan, siplicitor on the ground that in the Driver Memo Book it is not specifically mentioned that the said person has committed suicide in front of his train engine. In my considred opinion, when the evidence of this witness has remained unchallenged on record and it is also supported with immediate version of the incident as given by Station Master to the police, then there was no reason for the Tribunal to disbelieve the said evidence. Especially when there is no eye-witness to the incident examined by the respondents, the evidence of the Loco Pilot who was an only eye-witness to incident and who was not cross-examined by bringing any material controverting his testimony, there was no reason to disbelieve him. It is coupled with the fact that no evidence was adduced to prove that the deceased has boarded the train and allegedly made a phone call to his brother. There is no evidence that he has purchased ticket of the railway. Even if said ticket was lost or not found, if he has really purchased, the entry would have been definitely made in the register of the railway as the staff who has ::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 08:36:34 ::: fa-j 337-10 .odt 13 sold the ticket must maintain such entry. Respondents could have called for such evidence, by issuing summons to the railway administration. However, no such evidence was made available. Hence, the Tribunal has committed a grave error in rejecting the case of appellant that cause of accident was the own act of the deceased who came on the railway track, all of a sudden and committed suicide.
18] As a result, the impugned judgment and order of the Tribunal cannot stand on scrunity of both legal and factual aspects. As it is not based on the evidence on record. Hence, it is liable to be quashed and set aside.
The appeal therefore, needs to be allowed, and is accordingly allowed with no order as to costs.
The impugned judgment and order of the Railway Tribunal is quashed and set aside.
As a result, the application filed by the respondents- applicant for compensation stands dismissed.
JUDGE RGIngole ::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 08:36:34 :::