40-J-FA-1190-16 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.1190 OF 2016
1. Sushma wd/o Milind Ganvir
Aged 32 years,
Occ. Household.
2. Divyang s/o Milind Ganvir
aged about 8 years.
Occ. Student,
Acting through his natural
guardian mother appellant No.1.
3. Mahendra s/o Ramaji Ganvir
Aged about 51 yers.
Occ. Labour
All residents of Kapil Nagar,
NIT Quarter, D-48, Nari Road,
Nagpur Dist. Nagpur. ... Appellants.
-vs-
Union of India,
Through the General Manager,
Central Railway, C.S.T. Mumbai ... Respondent.
Shri Lalit Limaye, Advocate for appellants.
Shri N. P. Lambat, Advocate for respondent.
CORAM : A.S.CHANDURKAR, J.
DATE : March 07, 2017 Oral Judgment :
In view of notice for final disposal issued earlier, the appeal is taken up for final disposal. The learned counsel for the parties have been heard at length.
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40-J-FA-1190-16 2/6 The appellants are the claimants who had initiated proceedings for grant of compensation on account of the death of one Milind Ganvir, husband of appellant No.1 and father of appellant No.2 in an accident dated 18/04/2010. The Railway Claims Tribunal by the impugned judgment dismissed the claim application by holding that said Milind Ganvir did not die on account of any untoward incident.
2. It is the case of the appellants that on 18/04/2010 said Milind Ganvir had purchased railway ticket for travelling from Nagpur to Akola. On said day between stations Chandur Railway and Manjerkhed Railway, said Milind fell down from a running train on account of a sudden jerk and died on the spot. The respondent denied the claim on the ground that the deceased did not take proper care while travelling and that there was not unexpected jerk to the train. It was pleaded that the death was not on account of any accidental fall but it was a case of self inflicted injury. The Claims Tribunal after considering the evidence on record held that said Milind was travelling with a valid ticket and that he was a bonafide passenger. However, it was held that the appellants had not able to prove that the accident occurred as an untoward incident.
2. Shri L. Limaye, learned counsel for the appellants submitted that the Claims Tribunal having found that the deceased was a bonafide ::: Uploaded on - 18/03/2017 ::: Downloaded on - 27/08/2017 19:08:27 ::: 40-J-FA-1190-16 3/6 passenger had committed an error in holding that the death occurred on account of a self inflicted injury. He submitted that there was no evidence brought on record by the respondent to hold that the deceased had committed suicide. Though the statutory investigation report indicated that the deceased had violated provisions of Section 156 of the Railways Act, 1989, no offence in that regard had been reported. Only on the basis of surmises it was concluded that the the death occurred not as an untoward incident. He referred to the investigation papers that were submitted to the Railway Authorities and by relying upon the judgment of the Hyderabad High Court in Shaik Mahboob Basha and ors. vs. Union of India 2016(3) T.A.C. 538 prayed that the appellants were entitled for grant of compensation.
3. Per contra, Shri N. P. Lambat, learned counsel for the respondent supported the impugned order. According to him the ticket found with the deceased was dated 17/04/2010 while the accident had occurred on 18/04/2010. He submitted that though the respondent had examined the Deputy Station Manager, said witness was not cross-examined. In the claim application, the number of the train was also not stated. He urged that considering the injuries sustained by the deceased it could not be said that the death occurred on account of an accidental fall from the train. It was not a case of any untoward incident. He therefore submitted that the Claims ::: Uploaded on - 18/03/2017 ::: Downloaded on - 27/08/2017 19:08:27 ::: 40-J-FA-1190-16 4/6 Tribunal rightly declined to grant compensation.
4. I have heard the learned counsel for the parties at length and I have perused the records of the case. The following point arises for consideration :
" Whether the appellants are entitled for grant of statutory compensation ? "
5. The Claims Tribunal while answering Issue No.2 has recorded a finding that as the deceased was found in possession of railway ticket, he was a bonafide passenger. This finding recorded in paragraph 7 of the impugned judgment is not under challenge. Once it is found that the deceased was a bonafide passenger, the only question that remains to be considered is whether the death as occurred was on account of an untoward incident as defined in Section 123 (c) of the Railways Act, 1989. Under sub clause-(2) of clause (c) of Section 123, the accidental fall of a passenger from the train carrying passengers is included as an untoward incident.
6. The appellant No.1 was examined in support of the claim for compensation. This witness however admitted that she was not travelling along with the deceased and hence she was not aware about the manner in which the accident occurred. She denied the suggestion that the deceased ::: Uploaded on - 18/03/2017 ::: Downloaded on - 27/08/2017 19:08:27 ::: 40-J-FA-1190-16 5/6 had committed suicide in front of the train. The respondent examined its Deputy Station Manager who deposed that no untoward incident of any accidental death was reported by any Guard or Loco Pilot. This is the only evidence available on record. Perusal of the statutory investigation report indicates that the deceased died on account of his own negligence and was also guilty of the offence punishable under Section 156 of the Railways Act, 1989. The liability to pay compensation under Section 124-A of the said Act is regardless of any wrongful act or default on the part of the Railway administration. Once it is found that the deceased was a bonafide passenger then the burden to urge that the claim for compensation should be disallowed is on the Railways. With regard to the exceptions that are carved out under Section 124-A of the said Act, there is no evidence brought on record by the respondent. Merely because of the fatal injuries suffered by the deceased due to which his body was crushed, it is sought to be urged that the injuries were self inflicted. In absence of any such evidence being brought on record, it would not be permissible to deny the claim for compensation only on the basis of nature of injuries suffered by the deceased. As noted above, there was no report made under Section 156 of the said Act despite the case being that said provisions were violated. Failure to cross-examine Deputy Station Manager is not of much avail after it is found that the deceased was a bonafide passenger. The observations in Shaik Mahboob (supra) support the case of the appellants. The Claims Tribunal without any evidence on ::: Uploaded on - 18/03/2017 ::: Downloaded on - 27/08/2017 19:08:27 ::: 40-J-FA-1190-16 6/6 record has erroneously held that the death of said Milind Ganvir did not occur on account of any untoward incident. The point as framed is answered by holding that the claimants are entitled for grant of statutory compensation.
7. In view of aforesaid discussion, the following order is passed :
The judgment of Railway Claims Tribunal, Nagpur dated 04/10/2013 in Claim Application No.OA(IIu)/NGP/2010/0301 is quashed and set aside. It is held that the appellants are entitled for an amount of Rs.4,00,000/- as statutory compensation along with interest @ 9% per annum from the date of presentation of the claim petition which is 15/12/2010 till realization of the amount. Before the amount of compensation is released in favour of the appellants, the deficit court fee shall be deducted by the respondent and remitted to this Court.
First Appeal is allowed in aforesaid terms with no order as to costs.
JUDGE Asmita ::: Uploaded on - 18/03/2017 ::: Downloaded on - 27/08/2017 19:08:27 :::