J-fa1047.16.odt 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.1047 OF 2016
Vaibhav s/o. Rameshrao Koparkar,
Aged about 22 years,
Occupation : Nil,
R/o. Palasgaon (Bai),
Post Sindhi Rly.,
Tah. Seloo, District Nagpur. : APPELLANT
...VERSUS...
Union of India,
through the General Manager,
Central Railway, CST, Mumbai. : RESPONDENT
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri P.R. Agrawal, Advocate for the Appellant.
Shri N.P. Lambat, Advocate for the Respondent
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM : A.S.CHANDURKAR, J.
th DATE : 9 MARCH, 2017.
ORAL JUDGMENT :
1. Heard.
2. Admit. Taken up for final disposal with consent of counsel for the parties.
3. The appellant while travelling from Sindhi Railway to Wardha by Train No.51282 Up met with an accident, as a result of which ::: Uploaded on - 16/03/2017 ::: Downloaded on - 17/03/2017 00:14:54 ::: J-fa1047.16.odt 2/7 his both legs were required to be amputed. On that basis he filed an application for grant of compensation under the provisions of Section 16 of the Railway Claims Tribunal Act, 1987 (for short, "the said Act").
4. The application was opposed by the respondent on the ground that the appellant himself was responsible for the accident. By judgment dated 11th February, 2016, the Railway Claims Tribunal, Nagpur rejected the claim for compensation. Being aggrieved the present appeal has been filed under Section 23 of the said Act.
5. Shri P.R. Agrawal, learned counsel for the appellant submitted that from the material placed on record it was clear that the appellant was a bona fide passenger of the Railways and that he had sustained injuries, as a result of an untoward incident. According to him, there was no material on record for the Claims Tribunal to come to the conclusion that on account of rash and criminal negligence of the appellant he had sustained injuries. The conclusion arrived at by the Tribunal that the appellant was not involved in an untoward incident was without any evidence on record. Relying upon the judgment of the Hon'ble Supreme Court in the case of Union of India vs. Prabhakaran Vijaya Kumar and others, reported in 2008 (5) ALL MR 917, the judgment of the Kerala High Court in the case of Thomas vs. Union of India reported in 2008 ACJ 1921 and the judgment of the Hon'ble Andhra Pradesh High Court in the case of Union of India represented ::: Uploaded on - 16/03/2017 ::: Downloaded on - 17/03/2017 00:14:54 ::: J-fa1047.16.odt 3/7 by General Manager, South Central Railway vs. V.M. Ranganadhan reported in 2007 ACJ 901, it was submitted that the claim for compensation was liable to be allowed.
6. Shri N.P. Lambat, learned counsel for the respondent supported the impugned judgment. According to him, the accident occurred on account of own negligence of the appellant. The appellant tried to board train after it had started its journey. It was in fact a self inflicted injury and, therefore, it could not be said that the accident occurred on account of any 'untoward' incident. In that regard he placed reliance upon the judgment of the Delhi High Court in Smt. Santosh and others vs. Union of India decided in FAO 72/2011, decided on 5th September, 2011 as well as the judgment of the Karnataka High Court in the case of Union of India vs. Lakshmi and others reported in 2014 ACJ 2505.
7. With the assistance of learned counsel for the parties, I have perused the records of this case and I have given due consideration to their respective submissions. The following point arises for consideration :
Whether the appellant is entitled for compensation ?
8. In support of the claim for compensation, the appellant examined himself and stated that on 19.12.2011 he along with his friend ::: Uploaded on - 16/03/2017 ::: Downloaded on - 17/03/2017 00:14:54 ::: J-fa1047.16.odt 4/7 had booked a combined ticket for travelling from Sindhi Railway to Wardha. While boarding the train which had just started he had a fall, resulting in injuries. He produced on record the Railway ticket which was certified by the Police authorities. He was, therefore a bona fide passenger of the Railways. In the decision in Lakshmi and others (supra), the deceased was not found holding a valid railway ticket. Said decision is, therefore, distinguishable.
9. In the statutory investigation conducted by the respondent it was found that the appellant sustained injuries while trying to board the train. In his cross-examination it was suggested to the appellant that when the train arrived at the platform No.2 he was standing at platform No.1. He heard the whistle by the loco pilot. While trying to catch the train the appellant had a fall. It is on the basis of this cross-examination that it was sought to be urged by the learned counsel for the respondent that after the train started its journey the appellant was on platform No.1 and that he tried to catch the train which was leaving from platform No.2. If the suggestions given to the witness are perused what is admitted by the appellant is that he was on platform No.1 when the train arrived on platform No.2. This admission cannot straightway lead to the conclusion that even while the train left the platform the appellant was still on platform No.1. There is no suggestion given that the appellant was still on platform No.1 even when the train started its onward ::: Uploaded on - 16/03/2017 ::: Downloaded on - 17/03/2017 00:14:54 ::: J-fa1047.16.odt 5/7 journey. It is to be noted that the train in question was a passenger train and even according to the statement of the Guard of the train it had halted for almost two minutes at the platform. There is no other evidence brought on record by the respondent to justify the submission that even when the train started its journey the appellant was still on platform No.1.
10. In Prabhakaran (supra) the Hon'ble Supreme Court has held that even if a person trying to board the train has a fall, it would be considered as an accidental fall. It is further held that a liberal interpretation ought to be given to the aforesaid expression. The Claims Tribunal without considering these aspects of the matter proceeded to record a finding that the injuries was caused due to the own deliberate, rash and negligent act of the appellant. There is no material on record to come to the conclusion that the injuries on the appellant were self inflicted. In the decision in the case of Smt. Santosh and others (supra) relied upon by the learned counsel for the respondent, there was evidence on record in the form of an eye witness who had noticed that before the deceased therein had tried to board the train, 8 to 9 coaches of the train had already passed. As noted above, there is no such evidence on record in the present proceedings. Hence, it is held that the appellant suffered injuries on account of untoward incident as contemplated by the provisions of Section 123(c) of the Railways Act, ::: Uploaded on - 16/03/2017 ::: Downloaded on - 17/03/2017 00:14:54 ::: J-fa1047.16.odt 6/7 1989.
11. Once it is found that the appellant had sustained injuries as a result of such untoward incident, he would be entitled for grant of statutory compensation. The point as framed is answered in the affirmative. However, in the present facts the question would arise with regard to the quantum of compensation. To prove the injuries sustained by him, the appellant placed on record disability certificate dated 11.9.2012 on record as AW-1/7. The quantum of compensation that is payable for injuries has been stated in the Schedule to the Railway Accident and Untoward Incident (Compensation) Rules, 1990. While according to the appellant, the injuries sustained by the appellant were entitled to be compensated either under Item 11 or 12 of Part III, according to the respondent, the injuries sustained would be either under Item 13 or 14 of the said Part III. The disability certificate however does not throw much light when the same is examined in the light of the injuries that are described in aforesaid Items.
12. Considering these aspects of the matter, the following course could be followed which would enable this Court to award appropriate compensation to the appellant.
13. The appellant shall appear before the Handicapped Board, General Hospital, Wardha within a period of one month from today. Thereafter, he shall be examined by the said Handicapped Board which ::: Uploaded on - 16/03/2017 ::: Downloaded on - 17/03/2017 00:14:54 ::: J-fa1047.16.odt 7/7 shall certify the nature of injuries suffered by the appellant after examining Item Nos.11 to 14 of Part III to the Schedule to the Railway Accident and Untoward Incident (Compensation) Rules, 1990. The appellant shall accordingly produce such certificate before this Court on the basis of which further orders in the matter of grant of compensation could be passed.
14. For said purpose, the appeal be fixed for further consideration on 17th April, 2017.
JUDGE okMksns ::: Uploaded on - 16/03/2017 ::: Downloaded on - 17/03/2017 00:14:54 :::